I. Brief history of rape law

Justice Rajiv Shakdher begins his judgment with a historical overview of rape law, emphasising the evolution of the concept of marital rape. He notes that the origins of the Marital Rape Exception (MRE) can be traced back to the doctrine of coverture, which held that a married woman’s legal rights were subsumed by her husband’s. This historical context is crucial for understanding the archaic nature of the MRE, which Justice Shakdher describes as being rooted in a time when women were treated as mere property of their husbands.

II. Separation of powers and judicial restraint

Justice Shakdher addresses the argument that the judiciary should not interfere with legislative decisions, particularly in matters of criminal law. The counsel for one of the intervenors—Men’s Welfare Trust— had argued that if the court were to exercise the powers under Article 226, and strike down MRE, it would have carried out a legislative act thus blurring the Doctrine of Separation of Powers.

Justice Shakdher first establishes via rich case law that in India, the separation of powers is not as rigid as it is in other jurisdictions. Having established it as such, he essentially states that the doctrine does not preclude the judiciary from examining the constitutionality of laws to legislate but to ensure that laws are in compliance with the Constitution (Para 123).

His reasoning behind the court’s power to address the constitutionality of the MRE—against the argument that the Court cannot legislate—is simple and to the point. He states that Article 13 empowers courts to declare void any laws that contravene Part III (Fundamental Rights). Therefore, according to Justice Shakdher, the court’s power includes, as in this case, the authority to deem a law or provision unconstitutional. He states as follows: “The submission that the issues involved concern a policy decision which, in turn, requires wide ranging consultations with members of the public and domain experts misses, if I may say so, the wood for the trees inasmuch as it fails to accept that what the court has before it is a legal issue i.e., whether or not the impugned provisions (which includes MRE) violate a married woman’s fundamental rights conferred under the Constitution.” (Para 125)

Justice Shakdher rejects the notion that judicial restraint should prevent the court from examining the constitutionality of the MRE. To let it be handled by legislature which actually has the means to conduct consultations with a diverse set of stakeholders, it is not an economic/policy issue. According to him, it is a legal issue with alleged violations of fundamental rights and “Side-stepping such issues would be akin to the court seeking “an alibi” for refusing to decide a legal controversy, which it is obliged in law to decide.” (Para 127)

III. Ambit of section 375 of the IPC-Article 14 Test

Justice Shakdher analyses Section 375 of the Indian Penal Code (IPC), which defines rape. He emphasises that rape’s unlawfulness hinges on whether sexual acts were consensual. Section 375’s Clauses (a)-(d) ignore marital status. They apply to all forced sexual acts, except when the offender is a husband. Similarly, married women cannot file criminal charges against their husbands under these clauses. (Para 135.2)

Justice Shakdher identifies consent as central to Section 375. He then examines the Marital Rape Exception (MRE), which treats married and unmarried individuals differently. He concludes MRE violates Article 14 of the Constitution. Why? He applies the Article 14 test: a law’s “intelligible differentia” (clear distinction) must rationally connect to its object. MRE’s marital distinction, he argues, has no rational nexus to Section 375’s goal of criminalizing non-consensual acts. (Para 137.1)

Instead of treating MRE and Section 375 as separate, the judgement treats MRE against Section 375’s core objective. He finds MRE fails this test, as it exempts husbands from liability without justification.

Justice Shakdher’s reasoning behind striking down the Marital Rape Exception (MRE) is compelling not just for its legal soundness but also for the sheer weight of real-life examples he brings forth. His judgement does not merely counter Justice Hari Shankar’s argument that marriage creates a sexual expectation—it systematically dismantles the sexual expectation argument by highlighting multiple instances where a married woman is denied agency over her body, even in situations where fundamental rights to dignity and health should prevail.

One of the most striking aspects of his judgment is his reference to instances where a married woman’s lack of consent is disregarded: when her husband has a communicable disease, when she is unwell, or when the husband is involved in gang rape with co-accused. These examples puncture holes in the argument that marriage inherently implies perpetual consent. As he illustrates:

• Forced sex outside marriage is recognised as “real rape,” yet the same act within marriage is deemed something else.
• A chaste woman or a young girl is more likely to be considered a victim, but a married woman is not.
• A prior sexual relationship is regarded as a reasonable defense on the assumption of consent, yet a married woman’s consent is not even put to test.
• A sex worker has the legal right to refuse sex, but a married woman does not.
• In cases of gang rape where the husband is involved, the co-accused faces the full force of the law, while the husband is exempt merely due to his marital status.
• A married woman has no legal protection even when her husband has a communicable disease or when she herself is unwell. (Para 137.1)

However, Justice Shakdher’s judgement does not stop with disproving the idea of absolute and perpetual sexual expectation in marriage. It goes a step further, challenging the very notion that the State has a legitimate interest in protecting a marriage that functions as a site of tyranny. His judgment is uncompromising in its stance that when husbands are raping their wives, the law cannot seek to preserve such a structure. In his words:

“When marriage is tyranny, the State cannot have a plausible legitimate interest in saving it.” (Para 137.1)

This statement alone renders MRE indefensible under Article 14. The classification between married and unmarried women is not just arbitrary but actively unjust. He applies the test of reasonableness from Slattery v. Naylor (1888) and Kruse v. Johnson (1898), concluding that MRE is manifestly unjust and oppressive. He states:

“If one were to apply the aforesaid test the only conclusion that can be drawn is that the classification between married and unmarried couples in the context of forced sex is not just unequal in its operation but is also manifestly unjust. MRE, in my opinion, is also oppressive as it can find no justification in the minds of reasonable men, for lawmakers could never have intended to make such a law.” (Para 138)

Justice Shakdher critiques the over-reliance on the test of classification, arguing that courts must go beyond rigid categorisation and examine how a law actually operates on the ground. The real effect and impact on those subjected to it must take precedence over remote or indirect consequences, his judgement states, relying on Anuj Garg & Ors. v. Hotel Association of India & Ors.^[2] The Doctrine of Classification must ultimately serve the core principle of equality, not override it. (Para 140)

Applying this to MRE, he highlights its immediate and glaring impact: an unmarried rape survivor can seek protection under various IPC and CrPC provisions, but a married woman is denied the same safeguards. She cannot benefit from identity protection (Section 228A IPC), medical examination provisions (Sections 53A, 164A CrPC), gender-sensitive trial procedures (Sections 26, 154, 161, 309 CrPC), in-camera trials (Section 327 CrPC), or mandatory medical aid (Section 357C CrPC).

He states as follows while declaring the MRE to be violative of Article 14 of the Constitution:

“The fact that the law does not operate even-handedly for women who are similarly circumstanced i.e. subjected to forced sex is writ large and no amount of legal callisthenics will sustain MRE. Therefore, in my view, MRE is bad in law as it violates Article 14 of the Constitution.” (Para 141.1)

IV. On other arguments

Justice Shakdher dismantles the argument that MRE is justified because other IPC provisions are also relationship-based. He clarifies that while some laws exempt spouses from prosecution (e.g., Sections 136, 212, 216, 216A IPC), these apply only to harboring offenders, not committing offenses against a spouse. MRE, however, shields the husband precisely because he is the perpetrator, making the comparison fundamentally flawed.

He also rejects the claim that married women have alternative legal remedies under IPC and other statutes. Section 498A (cruelty), Section 304B (dowry death), and Section 306 (abetment of suicide) do not address rape—they deal with specific forms of abuse. Even the Domestic Violence Act (D.V. Act), while recognizing sexual abuse, does not criminalize marital rape. Instead, it provides civil remedies like protection orders and financial relief but denies the survivor the ability to prosecute her rapist husband under Section 376(1) IPC.

The result? The judgement points out to a glaring legal loophole where a wife can report every other crime committed by her husband except rape. This exposes the hollowness of the claim that existing laws protect married women against sexual violence.

V. MRE violates Article 21 of the Constitution

Justice Shakdher asserts that the MRE violates Article 21 of the Constitution, which guarantees the right to life and personal liberty. He argues that the MRE undermines a woman’s right to bodily integrity and autonomy by immunizing husbands from prosecution for non-consensual sexual acts within marriage.

Justice Shakdher states, “The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty which encompasses her right to protect her physical and mental being. Non-consensual sex destroys this core by violating what is dear to her, which is, her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate. While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred.”  (Para 163)

Therefore, denying a married woman the right to legally recognize rape by her husband strikes at the core of her right to life and liberty under Article 21.

VI. MRE Violates Articles 15 and 19(1)(a) of the Constitution

Justice Shakdher also examines the MRE’s impact on Articles 15 and 19(1)(a) of the Constitution, which guarantee protection from discrimination and the right to freedom of expression, respectively. He argues that the MRE perpetuates gender discrimination by treating married women differently from unmarried women.

Justice Shakdher states, “The guarantee of freedom of expression includes a woman’s right to assert her sexual agency and autonomy. The fact that this right is also secured by Article 21 (which is available to non-citizens as well) lends strength to the right conferred on a married woman to express herself and not be subjected to non-consensual sexual intercourse by her husband.”  (Para 166.1)

VII. Presumption of constitutionality of pre-constitutional statutes

The judgment addresses the presumption of constitutionality concerning pre-constitutional laws like the IPC, asserting that such laws are not immune from constitutional scrutiny. While Article 372 saves pre-constitutional laws, it does not shield them from being tested against fundamental rights under Articles 14, 15, 19(1) (a) and 21.

The judgment acknowledges the argument from Navtej Singh Johar vs Union of India and Joseph Shine that pre-constitutional statutes do not enjoy an inherent presumption of constitutionality.[3]

Further, the judgement emphasizes the evolving nature of constitutional interpretation. Relying on Anuj Garg, it holds that laws, even if constitutional at inception, can become unconstitutional due to societal changes. Thus, outdated legal provisions must be reassessed to align with contemporary constitutional values. (Para 172.1)

VIII. Foreign decisions, international covenants, and Indian parliamentary reports

The judgment pushes back against objections to relying on foreign decisions and international covenants, pointing out that legal systems worldwide have already moved past the idea that marriage grants immunity from rape. Cases like CR v. UK (ECHR) and People v. Liberta (New York Court of Appeals) make it clear that the marital rape exemption has no place in modern law. Courts in Nepal and the Philippines have also ruled that forced sex in marriage is still rape, reinforcing that consent does not become irrelevant after marriage.

It recognises the importance of international conventions like CEDAW and the Beijing Declaration emphasize gender equality and protection against sexual violence, making it clear that MRE goes against India’s global commitments. Courts in India have previously used international law to interpret domestic statutes, and the judgment follows that precedent.

As for parliamentary reports, multiple committees—including the Justice Verma Committee—have called for scrapping MRE. The fact that the legislature hasn’t acted doesn’t mean courts can’t step in. Navtej Singh Johar made it clear that legislative inaction is a “neutral fact” and doesn’t block judicial review.  The judgement recognises this and follows the same principle.

IX. On miscellaneous issues

Conjugal expectations and marital rights

The judgment critiques the notion of “conjugal expectation,” clarifying that while legitimate during a harmonious marriage, it cannot equate to an unfettered right to non-consensual sex. It references Section 9 of the Hindu Marriage Act (HMA) and Order XXI Rule 32 of the Civil Procedure Code (CPC), noting that even restitution decrees for conjugal rights cannot mandate consummation. The law must respect marital consent, not impose obligations. (Para 146)

Marriage as an institution vs. individual rights

The judgment rejects the argument that excluding marital rape from Section 375 IPC protects the institution of marriage. It emphasizes that marriage is a union of individuals rooted in mutuality, respect, and autonomy. When these principles are violated, the institution collapses. The state’s role is limited to recognizing/dissolving marriages via laws like the HMA, Domestic Violence Act (D.V. Act), and IPC provisions (Sections 375–376B), not shielding perpetrators of sexual violence (Para 148.3).

Labeling marital rape as “rape”

The judgment argues that sexual assault by a husband falling under Section 375 must be labeled as rape to reflect societal disapproval. It critiques societal stigma against victims, not perpetrators, and dismisses the distinction between marital rape and other IPC offenses (e.g., hurt under Sections 319–323, cruelty under Section 498A). Labeling is critical for legal accountability. (Para 149)

False cases and empirical evidence

The judgment refutes fears of false cases, citing National Family Health Survey (NFHS-4) 2015–16 data showing 99% of sexual assaults go unreported. It dismisses the argument as exaggerated, noting courts handle false complaints under IPC provisions like Section 498A (Para 151). The state’s interest in protecting women from abuse outweighs unfounded concerns about misuse.

Here too, we can see the contrast in Justice Rajiv Shakdher’s judgement and Justice Hari Shankar’s judgement in terms of reliance on data. As mentioned in our analysis of Justice Harishankar’s judgement, his analysis lacks empirical data or backing of scholarly work when he asserts that rape by a stranger and non-consensual sexual activity by a husband are not equal in the terms of the psychological trauma they inflict on the woman.

Invasion of the private sphere

The judgment rejects claims that prosecuting marital rape invades private marital space. It distinguishes rape from other marital crimes (e.g., cruelty, hurt) by emphasizing constitutional rights. Citing Joseph Shine vs Union of India (2018), it holds that privacy cannot shield rights violations, and marital intimacy is not exempt from constitutional scrutiny (Para 152).[4] The judgment dismisses arguments about evidentiary difficulties, equating marital rape to other private-space crimes. 

Conclusion

Justice Rajiv Shakdher’s judgment in RIT Foundation is a masterclass in constitutional adjudication, dismantling the marital rape exception (MRE) not merely as a legal anomaly but as a moral affront to India’s republican ethos. By anchoring his analysis in the lived realities of women—where marriage becomes a license for tyranny—he transcends abstract doctrinal debates to expose the MRE’s core flaw: its reduction of women to chattel, stripped of autonomy, dignity, and bodily integrity.

Justice Shakdher’s reasoning is a rebuke to judicial timidity. He rejects the facile argument that courts must defer to legislative “policy choices,” reminding us that the judiciary’s duty is to safeguard fundamental rights, not shield regressive laws from scrutiny. His invocation of Article 13—declaring unconstitutional any law that violates Part III—is a clarion call for courts to actively engage with societal evolution, rather than entombing themselves in the formalism of “separation of powers.”

The judgment’s brilliance lies in its refusal to treat marriage as a sacred cow. It dissects the MRE’s “conjugal expectations” myth, revealing it as a fig leaf for systemic misogyny. By contrasting the legal protections afforded to unmarried rape survivors with the abject denial of justice for married women, it lays bare the MRE’s arbitrary cruelty.

Yet, Justice Shakdher’s verdict is more than a legal victory; it is a philosophical manifesto. His assertion that “when marriage is tyranny, the State cannot have a legitimate interest in saving it” challenges the very premise of a legal regime that prioritizes familial “stability” over individual rights. This is not merely about criminalizing marital rape—it is about redefining marriage itself as a partnership of equals, not a hierarchy of domination.

In contrast, Justice Hari Shankar’s deference to legislative inaction and his elevation of marriage as an institution above constitutional rights represent a jurisprudential throwback, clinging to a vision of the law as a tool for social control rather than liberation. The split verdict, therefore, is not merely a clash of legal opinions but a microcosm of India’s broader struggle between tradition and transformation.

Justice Shakdher’s judgment is a testament to the Constitution’s living spirit—a reminder that rights are not mere parchment promises but living guarantees that demand constant vigilance. By striking down the MRE, he does not merely correct a legal wrong; he reaffirms the judiciary’s role as the Constitution’s moral compass, ensuring a future where no woman’s body is subjected to patriarchal entitlement. In doing so, he invites us to reimagine justice not as a compromise between competing interests, but as an uncompromising commitment to human dignity.

(The author is part of the legal research team of the organisation)

[1] 2022 SCC OnLine Del 1404

^[2]  (2008) 3 SCC 1

[3] (2018) 10 SCC 1

[4] (2019) 3 SCC 39

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A Licence to Violate: Chhattisgarh HC’s ruling on marital rape exposes a legal travesty’

The post When marriage is tyranny: Justice Shakdher’s judgment reads down the marital rape exception as a constitutional imperative appeared first on SabrangIndia.

While Justice Rajiv Shakdher struck down the MRE, Justice C. Hari Shankar dismissed the petitions—upholding the constitutional validity of the MRE. This article will focus on Justice C. Hari Shankar’s opinion that upheld the constitutionality of the provisions, essentially denying any woman recourse under law prosecuting rape within the institution of marriage.

Facts

• The RIT Foundation, along with the All-India Democratic Women’s Association (AIDWA) and two other individuals, filed a petition challenging the marital rape exception (MRE) under Section 375, Exception 2 of the Indian Penal Code (IPC) 1860. The petition argued that the MRE should be struck down as it violated the constitutional rights of women and perpetuated gendered violence and discrimination.

Provisions involved

The following provisions were challenged:

• Section 375, Exception 2 of the IPC: This exception stated that sexual intercourse by a man with his own wife, who is not under 18 years of age, was not considered rape.
• Section 376B of the IPC: This section dealt with the punishment (2 years) for rape committed by a husband who was separated from his wife.
• Section 198B of the Code of Criminal Procedure (CrPC):  This sections states that no court shall take cognisance of an offence punishable under section 376B of the Indian Penal Code (IPC) where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the husband.

These abovementioned provisions remain in the same form in the Bharatiya Nyaya Sanhita, 2023 with different section numbers via Sections 63 and 67 of the BNS and Section 221 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Arguments advanced against MRE:

• • The MRE violated the constitutional goals of autonomy, dignity, and gender equality enshrined in Articles 15, 19(1) (a), and 21 of the Constitution.
  • The MRE treats women as the property of their husbands after marriage, denying them sexual autonomy, bodily integrity, and human dignity as guaranteed by Article 21.
  • The MRE violated the reasonable classification test of Article 14 as it created a distinction between married and unmarried women, denying equal rights to both.
  • The MRE should be struck down, and the punishment under Section 376B should also be invalidated as it discriminated between offences committed by separated husbands, actual husbands, and strangers.

Arguments for MRE’s constitutionality:

• • The crux of these arguments was twofold—court’s lack of power to read down the MRE thus creating a new offence and the fact that legislature had made a conscious decision to not label non-consensual sexual act between husband and wife as rape to protect the institution of marriage, by extension, families and progeny thus there is a legitimate object that the state is seeking to achieve via the MRE.

Justice C. Hari Shankar began his judgment by outlining the context and the specific challenge before the court. The petitioners argued that Exception 2 to Section 375, which states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape, is unconstitutional. They contended that this exception violates Articles 14, 19(1)(a), and 21 of the Constitution, which guarantee equality before the law, freedom of speech and expression, and protection of life and personal liberty, respectively. The petitioners emphasized the importance of sexual autonomy and consent, arguing that the exception undermines these principles by immunizing husbands from prosecution for non-consensual sexual acts within marriage.

On original objective and the continuing legislative intent

Justice C. Hari Shankar addressed the original objective and the continuing legislative intent behind the Marital Rape Exception (MRE) in his judgment. He emphasised that the original objective of the MRE, as conceived in the 1860 IPC, was not based on the outdated “Hale dictum,” which suggested that marriage implied a wife’s consent to sexual intercourse with her husband. Instead, the MRE was rooted in the unique nature of the marital relationship and the need to balance individual rights with the preservation of the institution of marriage.

He stated:

“There is nothing to indicate that the ‘marital exception to rape,’ contained in the Exception to Section 375 of the IPC, or even in the proposed Exception in Clause 359 of the draft Penal Code, was predicated on the ‘Hale dictum,’ which refers to the following 1736 articulation, by Sir Matthew Hale: ‘The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband, which she cannot retract.’ Repeated allusion was made, by learned Counsel for the petitioners, to the Hale dictum. There can be no manner of doubt that this dictum is anachronistic in the extreme, and cannot sustain constitutional, or even legal, scrutiny, given the evolution of thought with the passage of time since the day it was rendered. To my mind, however, this aspect is completely irrelevant, as the Hale dictum does not appear to have been the raison d’être either of Section 359 of the draft Penal Code or Section 375 of the IPC.” [Para 13]

Justice C. Hari Shankar further explained that the continuing legislative intent behind retaining the MRE is to preserve the institution of marriage. He highlighted that the legislature, in its wisdom, has chosen to treat non-consensual sexual acts within marriage differently from those outside of marriage. He argued that this distinction is based on an intelligible differentia that has a rational nexus to the object of preserving the marital institution.

In essence, Justice C. Hari Shankar maintained that the continuing legislative intent behind the MRE is to protect the institution of marriage by distinguishing between non-consensual sexual acts within marriage and those outside of it. He emphasized that this distinction is not arbitrary but is based on a rational assessment of the unique dynamics of the marital relationship and the broader societal interests at stake.

On rational nexus and intelligible differentia

Justice C. Hari Shankar further analyses the concept of “intelligible differentia” and “rational nexus” in the context of Article 14 of the Constitution.

His interpretation rests on the foundational premise that the marital relationship is intrinsically distinct from all other forms of relationships, particularly in that it carries an inexorable incident of a legitimate expectation of sexual relations.

He articulates this position as follows:

“The primary distinction, which distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex.”

This formulation forms the central pillar of his justification for treating non-consensual sexual acts within marriage differently from those outside of it. The judgment thus constructs an argument wherein marriage, as a legal institution, grants a presumption of consensual intimacy, differentiating it from other relationships where consent must be independently established.

He states:

“The legislature is free, therefore, even while defining offences, to recognise ‘degrees of evil.’ A classification based on the degree of evil, which may otherwise be expressed as the extent of culpability, would also, therefore, be valid. It is only a classification which is made without any reasonable basis which should be regarded as invalid. While the Court may examine whether the basis of classification is reasonable, once it is found to be so, the right of the legislature to classify has to be respected. Where there is no discernible basis for classification, however, or where the basis, though discernible, is unreasonable or otherwise unconstitutional, the provision would perish.” [Para 144]

Internal inconsistencies within the IPC framework

However, this reasoning, while maintaining internal consistency within the judge’s interpretative framework, encounters contradictions within the broader legal architecture of the IPC—particularly when juxtaposed with Section 376B, which criminalizes non-consensual intercourse between a husband and wife during separation.

Section 376B, which prescribes a lesser punishment (up to two years of imprisonment), nonetheless acknowledges that marital status alone does not create an absolute or irrevocable expectation of sexual relations. This provision, therefore, implicitly recognizes a wife’s autonomy and the necessity of consent, at least in specific contexts. The logical inconsistency emerges in two key aspects:

1. Recognition of autonomy in judicial and non-judicial separations

1. • Section 376B (punishment for rape by a husband during separation) does not require a court-ordered decree of separation for its application, meaning that a wife living separately from her husband—without a state-recognized order—still retains legal protection against non-consensual intercourse involving her own husband.
   • This directly contradicts the fundamental assumption of the MRE, which presumes that marriage inherently entails continuous consent to sexual relations. If the institution of marriage is so distinct and special, then why does the law acknowledge that consent is required during separation, even without formal judicial recognition? It is to ensure that all institutions are within the bounds of the Constitution and the value system it espouses. To this extent, the Criminal Law Amendment Act, 1983 added the current 376B (it was added as 376A but was later renumbered to 376B in 2013 after the Criminal Law Amendment, 2013).

2. The status of underage marital rape under IPC

1. • The inconsistency is further compounded by the fact that the IPC (via the Independent Thought vs Union of India judgement) criminalizes non-consensual intercourse with a wife below the age of 18, thereby recognizing the primacy of consent in certain marital contexts.
   • If the marital bond inherently carries an expectation of sexual relations, as the judgment asserts, then the legal system’s refusal to extend this principle to child marriages undermines the assumption of an absolute and uninterrupted sexual expectation within marriage. However, it has been extended to bring it in consonance with the constitutional principles in Independent Thought vs. Union of India.[2]

The judgment by Justice C. Hari Shankar relies on the intelligible differentia test to uphold the MRE, but the incoherence in its application becomes evident when viewed through the lens of Section 376B and related provisions. If marriage is a uniquely protected institution, then its sanctity should logically override even non-judicial separations—yet it does not. This suggests that when the law is compelled to acknowledge a wife’s individual autonomy, it does so in ways that directly conflict with the underlying justification for the MRE.

One could argue that a clear distinction exists in the punishments, as spousal rape during separation carries a lighter sentence (two years) compared to the harsher penalties under Section 375. However, this distinction collapses under scrutiny because:

• The recognition of consent during separation (including non-judicial separation) means that the “legitimate expectation of sex” argument is not absolute.
• The law, therefore, implicitly concedes that the marital institution does not override a wife’s right to autonomy in every instance.
• If the expectation of sexual relations within marriage were as absolute as the judgment suggests, then non-consensual intercourse during a non-court-ordered separation should not have been an offense at all.

The IPC’s contradictions — recognizing marital consent in separations (Section 376B) and criminalising underage marital rape — dismantle the “intelligible differentia” justifying the marital rape exception (MRE). By acknowledging that consent matters even within marriage, the law inadvertently concedes that marital status alone cannot negate autonomy. This fractures the MRE’s foundational logic: if a separated or underage wife retains constitutional rights to bodily integrity (Articles 14, 21), why does cohabitation erase them? The disparity in punishments (2 years vs. 10 for non-marital rape) further portrays a patriarchal hierarchy, implying a husband’s “claim” outweighs a wife’s dignity — a stance antithetical to Article 15’s prohibition of gender discrimination and to Constitutional Morality as espoused in Navtej Singh Johar vs Union of India.[3]

On Article 19 and 21

Justice C. Hari Shankar also addresses the argument that the exception violates Article 19(1)(a) by restricting a married woman’s right to sexual self-expression. He rejects this contention, stating that the exception does not compromise a woman’s right to consent or refuse consent to sexual relations. Instead, it merely recognises the complex interplay of rights and obligations within a marital relationship. Similarly, he dismisses the claim that the exception infringes upon Article 21, asserting that there is no fundamental right under the Constitution for a woman to prosecute her husband for rape in the context of marriage. It is here that Justice C. Hari Shankar makes deeply problematic observations that highlight and symbolise the underrepresentation of women and their voices, both in the society and in the judiciary that has contributed to emergence views such as follows.

He states as follows:

“If one were to apply, practically, what has been said by Mr. Rao of the crime of “rape”, the entire raison d’etre of the impugned Exception becomes apparent. As Mr. Rao correctly states, rape inflicts, on the woman, a “deep sense of some deathless shame”, and results in deep psychological, physical and emotional trauma, degrading the very soul of the victim. When one examines these aspects, in the backdrop of sexual assault by a stranger, vis-à-vis nonconsensual sex between husband and wife, the distinction in the two situations becomes starkly apparent. A woman who is waylaid by a stranger, and suffers sexual assault – even if it were to fall short of actual rape – sustains much more physical, emotional and psychological trauma than a wife who has, on one, or even more than one, occasion, to have sex with her husband despite her unwillingness. It would be grossly unrealistic, in my considered opinion, to treat these two situations as even remotely proximate. Acts which, when committed by strangers, result in far greater damage and trauma, cannot reasonably be regarded as having the same effect, when committed by one’s spouse, especially in the case of a subsisting and surviving marriage. The gross effects, on the physical and emotional psyche of a woman who is forced into non-consensual sex, against her will, by a stranger, cannot be said to visit a wife placed in the same situation vis-à-vis her husband. In any event, the distinction between the two situations is apparent. If, therefore, the legislature does not choose to attach, to the latter situation, the appellation of ‘rape’, which would apply in the former, the distinction is founded on an intelligible differentia, and does not call for judicial censure.” [Para 184]

Essentially, Justice C. Hari Shankar says that rape by a stranger is more psychologically damaging than rape by a husband of his wife.

For starters, this line of reasoning differentiates the intensity of suffering on the basis of the identity of the victim’s vis-a-vis her relation to the accused depending on whether the accused is the victim’s husband or a stranger. This exercise was unnecessary, if not deeply flawed and regressive.

Moreover, the same Section 376 which punishes rape has a stricter punishment for aggravated rape—which punishes rape by people in authority or relatives. Therefore, the law deems rape by people who are in positions of authority/trust more serious than other cases. This distinction should have prompted Justice C. Hari Shankar to delve into the issue with much more sensitivity to the suffering of a victim which it failed to do.

This is not to say that the relation between people in authority and the victims is same as marital relationship. The reason for quoting this example is to show that trauma cannot be said to be less or limited when a husband commits rape when compared to a when a stranger commits the offence.

Secondly, a simple search would have given Justice Hari Shanker studies and scholarly research that discussed how traumatic it is for women to be raped by their own husbands. From Diana Russell’s pioneering work on Rape in Marriage in the 1980s to recent studies on marital rape that reveal its devastating physical, reproductive, sexual, and psychological impact on women well into old age, there is well-established scholarship on the effects of marital rape. Given this, Justice C. Hari Shankar’s casual categorization of these traumas into different tiers is deeply concerning if not problematic (Bhat and Ullman, 2014;  Band-Winterstein T. and Avieli, 2022)[4][5]

On creation of a new offence

Justice C. Hari Shankar further considers the potential consequences of striking down the exception. He notes that doing so would create a new offence of “marital rape” and would necessitate a re-evaluation of the punishments prescribed under Section 376 of the IPC. He also highlights the practical difficulties that would arise in proving consent in cases of marital rape, given the private nature of the marital bedroom. The judge argues that these considerations weigh in favour of retaining the exception, as the legislature has the authority to make policy decisions regarding criminal law.

He maintained that the MRE is an integral part of Section 375 of the Indian Penal Code (IPC) and that removing it would fundamentally alter the scope of the offense of rape. He argued that the MRE is not merely an exception but a critical component of the legal framework that defines the offense of rape.

He stated:

“Offences may legitimately be made perpetrator-specific or victim-specific. In the present case, Section 375, read as a whole, makes the act of ‘rape’ perpetrator-specific, by excepting, from its scope, sexual acts by a husband with his wife… The specification of the identity of the man, and his relationship vis-à-vis the woman, which presently finds place in the impugned Exception might, therefore, just as well have been part of the main provision.” [Para 203]

However, MRE itself is what makes the offense of rape perpetrator-specific, and removing it would merely restore the general applicability of the offence to all individuals, regardless of their marital status. This view is supported by the Supreme Court’s decision in Independent Thought vs Union of India. In this case, the same provision was dealt with. The Marital Rape Exception, before the Independent Thought judgement, applied to non-consensual sexual acts with wife who is 15 years and above. Since it contrasted the Protection of Children from Sexual Offences Act, 2012 and the overall Constitution, the provision was read down to have it applied to only acts with a wife who is 18 and above thus protecting those women who are less than 18 years of age.

This is what the court said in Independent Thought addressing the concerns over it creating a new offence:

 One of the doubts raised was if this Court strikes down, partially or fully, Exception 2 to Section 375 Indian Penal Code, is the Court creating a new offence. There can be no cavil of doubt that the Courts cannot create an offence. However, there can be no manner of doubt that by partly striking down Section 375 Indian Penal Code, no new offence is being created. The offence already exists in the main part of Section 375 Indian Penal Code as well as in Section 3 and 5 of POCSO. What has been done is only to read down Exception 2 to Section 375 Indian Penal Code to bring it in consonance with the Constitution and POCSO. 

The judgement by Justice C. Hari Shankar does not deal with this prima facie similarity between the reasoning of Independent Thought and the reasoning of petitioners as to why reading down MRE does not create a new offence. He states as follows:

But, assert learned Counsel for the petitioners, by striking down the impugned Exception, this Court would not be creating an offence. They rely, for this purpose, on Independent Thought , in which it was held that the Supreme Court was not creating an offence by reading down the impugned Exception to apply to women below the age of 18. The analogy is between chalk and cheese. The situation that presents itself before us is not even remotely comparable to that which was before the Supreme Court in Independent Thought. We are not called upon to harmonise the impugned Exception with any other provision. The petitioners contend that the impugned Exception is outright unconstitutional and deserves to be guillotined. Would we not, by doing so, be creating a new offence?

We do not see any engagement with the proposition advanced by the petitioners or with the reasoning in Independent Thought. Striking down the marital exception would not create a new offence but would merely extend the application of Section 375 to all individuals, irrespective of marital status. Justice C. Hari Shankar’s concern—that such a move would turn previously non-offenders into offenders and that criminalization is the legislature’s prerogative—remains unreasoned when examined in light of the approach taken in Independent Thought.

Conclusion

Justice C. Hari Shankar’s judgement is a mix of genuine judicial restraint and a deeply flawed reasoning that puts women and their autonomy on the back burner, for the purpose of patriarchal notions of desire in the garb of sanctity of marriage. His reasoning after a point goes from flawed to problematic when he states the following: “Any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, in my view, is not only unjustified, but is ex facie unrealistic.” [Para 130]

While he is entitled to present his judicial opinion, he does not provide any reasoning for differentiating the trauma of marital rape from that of rape by a stranger. We do not know if he relied on any survey, or on what basis he came to his conclusion. The assertion lacks empirical evidence or scholarly backing and instead relies solely on personal assumptions, which are disconnected from established research on marital rape trauma.

Justice C. Hari Shankar’s wisdom in exercising judicial restraint is robust, tenable and sound when it relates to the argument that such change must come from the legislature. While it might not be entirely agreeable, there is a level of doctrinal firmness to it.

However, his views on marriage, expectations of sex and autonomy of women struggle to find their ground in the concepts of constitutional morality, ethical logic but flow with the flaws of regressive outlook on what a marriage is. These flaws stem not only from an inadequate understanding of how the law attributes sanctity to marriage but also from a superficial and reductive view of the emotional and psychological trauma endured by married women when their trust is violated by their own husbands through marital rape. In this sense, the flaws not only are legal, but also moral.

The novel contribution of this judgement is not the exercise of judicial restraint but an expression of outdated perception of marriage—one that subordinates constitutional morality to patriarchal tradition.

In the next part, the judgement of Justice Rajiv Shakdher declaring the MRE to be unconstitutional and his reasoning in answering some pertinent questions raised by Justice C. Hari Shankar will be discussed.

(The author is part of the legal research team of the organisation)

[1] 2022 SCC OnLine Del 1404

[2] [2017] 10 SCC 800

[3] (2018) 10 SCC 1

[4] Bhat, M. and Ullman, S.E., 2014. Examining marital violence in India: Review and recommendations for future research and practice. Trauma, Violence, & Abuse, 15(1), pp.57-74.

[5] Band-Winterstein, T. and Avieli, H., 2022. The lived experience of older women who are sexually abused in the context of lifelong IPV. Violence against women, 28(2), pp.443-464.

Also Read:

When marriage is tyranny: Justice Shakdher’s judgment reads down the marital rape exception as a constitutional imperative

Related:

D*ck or fist

A Licence to Violate: Chhattisgarh HC’s ruling on marital rape exposes a legal travesty’

The post How Justice C Harishankar, in upholding the exception to marital rape, delivered a reasoning fir for the dark ages appeared first on SabrangIndia.

More importantly, this policy could be seen as violating Article 15 (2)(a) of the Indian Constitution. Article 15(2(a) prohibits discrimination on grounds of sex, among others, to shops, public restaurants, hotels and places of public entertainment

Oyo’s policy disproportionately affects opposite-gender pairs, as they are more likely to be perceived as couples and be required to provide proof of marriage. In contrast, same-gender pairs, whether romantic or not, are less likely to face such scrutiny. For example, a man and a woman may be denied accommodation without proof of marriage, while two men or two women in the same situation may not encounter this barrier.

This differential treatment imposes unequal access conditions based on the sex of the individuals involved, effectively discriminating against opposite-gender pairs. Despite the policy’s neutral appearance, its implementation creates a disparity that contravenes Article 15(2) (a) by restricting access to hotel accommodations in a manner that is inherently sex-based.

Now, what could be done against discrimination is a natural question to arise. One would be to file a case under a statute but this is a specific right under Constitution but might not be enshrined in any statute. Can the Court be approached?

To address such discrimination and to answer the question, it is essential to explore the horizontal application of fundamental rights, which extends these rights to interactions between private individuals and entities, not just between individuals and the state.

Traditionally, fundamental rights have been viewed as protections against state action. However, with private entities exerting significant influence over essential services, there has been a discourse to consider the horizontal application of fundamental rights in a much more expansive scale than before. This article will examine the concept of horizontal application of fundamental rights and where we stand as of today, as far as jurisprudence is concerned.

The traditional vertical approach to fundamental rights

Fundamental rights in India have historically been seen as constraints on state power. This is known as the vertical application of fundamental rights, where rights are enforced only against the State (Malik, 2007). The reasoning behind this approach is that fundamental rights are guaranteed to citizens as protection from the State, with private actions being addressed through ordinary laws (Bhatia, 2021).

Under this traditional model, a private hospital denying treatment might not be directly liable for violating fundamental rights. Remedies would typically be sought through consumer protection laws or tort claims, rather than constitutional challenges. However, globalization and neoliberalism have transferred welfare responsibilities to the private sector without corresponding constitutional obligations (Bhatia, 2021). This has created power imbalances that the traditional vertical model fails to address.

The need for a horizontal application of fundamental rights

The horizontal application of fundamental rights extends constitutional protections to private actors, ensuring they also respect basic rights. In many cases, private entities hold economic and social power comparable to the State, necessitating constitutional oversight. This concept has been recognized in global legal frameworks, as seen in the constitutionalisation of private law, which integrates fundamental rights into private contracts, torts, and property law (Smits, 2010).

The horizontal effect can manifest in different forms:

• Direct horizontal effect: Fundamental rights are directly enforceable against private actors, much like they are against the state (Walkila, 2011). This means that an individual can directly bring a legal claim against another private party for violating their fundamental rights (Bhatia, 2021).

• Indirect horizontal effect: Fundamental rights influence the interpretation of private law provisions (Walkila, 2011). In this case, courts interpret existing private law in a way that gives effect to fundamental rights. This is not a direct enforcement but rather an interpretation or application of fundamental rights through other legal provisions.

• State-mediated effect: Rights are applied through the actions of public authorities (Walkila, 2011). This involves the state intervening to ensure private actors respect the rights of individuals. It is neither direct nor purely indirect but involves the state acting as a mediator to ensure fundamental rights are observed in private interactions (Frantziou, 2019).
• Functional equivalence: This approach seeks to equate private parties with the state, in character, functions, or impact, and hence subject them to constitutional obligations (Bhatia, 2021)

Critics argue that horizontal application may infringe on private autonomy (Friedmann & Barak, 2001). However, proponents emphasize its necessity in addressing social inequalities and mitigating power imbalances (Frantziou, 2019). Before the Horizontal Rights approach is discussed in Indian context, it is necessary to see how different legal system across the world have approached this matter so that at the end, we can not only compare our jurisprudence with the standards set by our own necessities but also with the standards set internationally.

Horizontal approach and jurisdictions across the world

Different countries have adopted varying approaches to the horizontal application of constitutional rights, which refers to the application of these rights to disputes between private parties, rather than solely between individuals and the state (Bhatia, 2021) This is because new power centres and mechanisms of oppression have emerged, necessitating departures from the default vertical approach where rights only apply between the state and individuals.

Germany has a strong tradition of applying constitutional rights in private law (Frantziou, 2019). The German approach is characterized by the concept of “indirect horizontality” (mittelbare Drittwirkung) (Frantziou, 2019; Walkila, 2016). In this model, constitutional rights do not directly bind private parties (Frantziou, 2019; Walkila, 2016). However, these rights influence the interpretation and development of private law rules (Frantziou, 2019; Walkila, 2016). The German Federal Constitutional Court has played a significant role in developing this concept (Frantziou, 2019; Walkila, 2016). In the landmark Lüth case, the court established that while fundamental rights do not override conflicting rules of private law, they must be considered when formulating private law (Henne & Riedlinger, 2005). This means that general clauses of the (private) civil codes are interpreted in light of the fundamental rights (Henne & Riedlinger, 2005). The German approach, therefore, does not impose direct obligations on private parties but ensures that the private law is consistent with constitutional values (Henne & Riedlinger, 2005, Katharina Stein, 2022)

The United States employs the “state action doctrine,” which limits the application of constitutional rights to actions by the government or those acting under its authority (Balkin, 2014). This doctrine means that, generally, constitutional rights do not apply to private actors (Balkin, 2014). In Shelley v. Kraemer (1948), the U.S. Supreme Court ruled that courts cannot enforce agreements that stop people from buying homes because of their race. These racial covenants, were private contracts where homeowners promised not to sell to certain racial groups. While individuals could still make these agreements, the Court decided that if a judge enforced them, it would count as government action and violate the Constitution (Henkin 1962). This reasoning was subjected to criticism, rightly so, by the scholars of that time, saying that such reasoning is antithetical to personal liberties (Nerken, 1977). It wasn’t until the Fair Housing Act of 1968 that the inclusion of racially restrictive covenants in property agreements was explicitly prohibited by law.

Typically, the U.S. follows a strict approach: a right either applies in a given situation or it doesn’t, without much consideration of the specific circumstances (Balkin, 2014). This is different from other countries that use “proportionality analysis,” which means they look at the context and details of each case to decide how rights should be applied (Balkin, 2014)

South Africa’s constitutional approach has evolved from indirect to more direct horizontal application of rights (Frantziou, 2019; Van der Walt, 2012). Under its Interim Constitution, there was a subtle shift from indirect horizontal effect to direct horizontal effect under the Final Constitution (Frantziou, 2019; Van der Walt, 2012). The South African Constitution grants some provisions of the Bill of Rights direct horizontal effect, making all ordinary legislation subject to compliance with the Bill of Rights (Frantziou, 2019; Van der Walt, 2012). This means that national courts are obligated to protect the realization of fundamental rights and provide effective remedies (Frantziou, 2019; Van der Walt, 2012). South African jurisprudence reveals that the horizontal effect operates through general provisions in the Bill of Rights, which apply to all law and bind private parties (Frantziou, 2019; Van der Walt, 2012).

In Canada, the approach to horizontal rights is often described as the “governmental functions” approach which follows the logic of state action but is narrower in its operation (Weinrib and Weinrib, 2001). The Canadian Charter of Rights and Freedoms does not directly bind private persons or apply to the common law governing their relations (Weinrib, 2001). The Supreme Court of Canada case R.W.D.S.U. v. Dolphin Delivery Ltd. held that the rights and freedoms in the Charter do not apply to private persons (Saunders, 2005; Weinrib, 2001). However, the common law can be adapted to the Constitution, with courts developing the common law in a way that is consistent with constitutional values (Saunders, 2005; Weinrib, 2001). This is called a parallel development of the common law, where courts exercise their inherent jurisdiction to interpret the common law to align with constitutional rights (Saunders, 2005; Weinrib, 2001). Some scholars note that the Canadian approach ignores the extensive German debate about direct and indirect application (Weinrib, 2001).

The United Kingdom does not have a single written constitution but has a quasi-constitutional statutory bill of rights – the Human Rights Act 1998 which raises similar issues to other jurisdictions (Hunt, 1998). The debate in the UK after the entry into force of the Human Rights Act, has focused on which form of horizontality is appropriate to the UK’s political constitution (Hunt, 1998). There are various opinions ranging from supporting a conception of horizontality through interpretation and incremental development of the common law compatibly with Convention rights (Hunt, 1998). Some legal scholars argue for an absolute duty to develop all existing common law compatibly with Convention rights, or simply to apply human rights directly (Hunt, 1998). The interaction of EU and UK law in the field of fundamental rights has influenced this debate in recent years, so that it would be fair to say that both direct and indirect forms of horizontal effect are available in the UK in respect of certain rights (Hunt, 1998).

Ireland: The Irish legal system has accepted the doctrine of full direct horizontal effect of constitutional rights. This means that the Irish Supreme Court interprets some constitutional rights to be directly binding and producing effects on the legal relationships between private parties. Every citizen in Ireland is entitled to invoke constitutional rights directly against another citizen, and not only against the State. The Irish Constitution itself, however, does not specifically provide for horizontal application. This approach contrasts with many Continental European approaches to the effect of fundamental rights. The Irish model allows for a direct application of constitutional rights in private disputes, meaning that an individual can bring a claim directly against another individual for violating their constitutional rights. The Irish model is considered a “constitutional tort,” where a violation of constitutional rights by one private actor against another can give rise to a legal claim (O’Cinneide, 2007).

Spain recognizes the direct horizontal application of human rights. The Spanish Constitutional Court has aligned its approach to the degree of protection guaranteed in EU law (Walkila, 2014, p. 133). In the Netherlands, both direct and indirect horizontal effects are recognized (Walkila, 2014, p. 164). Direct horizontal effect means fundamental rights are directly enforceable in the same way as in vertical relations, while indirect effect serves as an aid for interpretation, ensuring private law provisions conform to the contents of fundamental rights (Walkila, 2014, p. 147). A similar distinction exists in the Czech Republic (Walkila, 2014, p. 164), where the horizontal effect of constitutional rights has been addressed relatively recently. The Czech Republic is noted as having followed a strategy of constitution-conform interpretation and is among the jurisdictions that recognize both direct and indirect horizontal effects.

Slovakia, like the Czech Republic, has undergone recent constitutional reforms, leading to a more recent focus on the horizontal effect of fundamental rights. Before 2002, Slovakia’s Constitutional Tribunal could not review decisions of ordinary courts. However, the country has been recognized as having adopted a strategy similar to that of Poland, where high courts of the ordinary judiciary implement the horizontal effect of basic rights. In Poland, indirect horizontal effect is realized through general clauses and the interpretation of statutes in conformity with constitutional values, along with the review of constitutionality. Direct horizontal application of clear and precise constitutional provisions is also possible in exceptional cases (Walkila, 2014, p. 147).

Kenya’s Constitution of 2010 contains provisions that allow for the direct horizontal application of constitutional rights. This means that these rights can be applied in relationships between private parties, not just between individuals and the state. Specifically, Article 20 of the Kenyan Constitution does not formally limit the reach of horizontality. The Kenyan courts have also shown a willingness to apply the institutional approach to horizontal rights, particularly in cases of discrimination. However, while the courts have made some strides in this direction, they have been hesitant to articulate a fully consistent normative account of horizontality. This has resulted in an application of horizontality that is inconsistent and partial.

Jamaica’s 2011 Charter of Fundamental Rights and Freedoms also introduced the concept of bounded interpretive horizontality. Section 13(5) of the Charter allows for the application of constitutional rights to private relationships. However, this application is not unlimited. The Jamaican Constitution does not subject every private relationship to the Constitution, nor every fundamental right. Like South Africa, the Jamaican Constitution was intended to tackle disparities in power between private parties. The Jamaican courts have grappled with the challenge of balancing competing rights and determining the limits of horizontal application. The courts have tended towards a “balancing” doctrine and focusing on whether “adequate alternative remedies” exist in other laws to limit the application of horizontality. The Jamaican courts have engaged in depth with judgments from other jurisdictions, using comparative examples in their judgments.

Both Kenya and Jamaica’s horizontal rights doctrines are works in progress. While both jurisdictions have embraced the idea of applying constitutional rights to private relationships, they continue to grapple with questions around the limits of this application, and the need for a clear normative framework to guide decision-making in horizontal rights cases. An institutional approach, taking into account the institutionally-mediated power differences, may be a useful way to address the gaps in the current doctrine (Bhatia, 2024).

EU Law

The EU legal order incorporates all three dimensions of horizontality (direct, indirect, and state-mediated effect) (Frantziou, 2019; Walkila, 2016). However, in practice, the EU focuses almost exclusively on direct horizontal effect or its absence (Frantziou, 2019; Walkila, 2016). The EU law is influenced by different legal traditions but has its own method of systematisation of law (Frantziou, 2019; Walkila, 2016). The Court of Justice of the EU tends to pronounce itself on a case-by-case basis, which has led to complex concepts (Frantziou, 2019; Walkila, 2016).

Key Considerations:

• Public Interest: The application of horizontal effect is often justified by a ‘public interest’ reason that constitutionally justifies applying constitutional rights in private relationships (Frantziou, 2019; Walkila, 2016).
• Interchangeability of Approaches: Different forms of horizontality are seen as complementary and interchangeable (Frantziou, 2019). What is key is the effective constitutional justification as a means of recognizing private relations in which fundamental rights are relevant (Frantziou, 2019).
• Context: The application of rights can be influenced by the context of the specific situation, with proportionality analysis allowing for a more nuanced application of rights (Frantziou, 2019).

The horizontal application of constitutional rights is a complex and evolving area of law (Frantziou, 2019). Different jurisdictions have adopted various approaches, influenced by their unique constitutional and legal traditions (Frantziou, 2019). While some, like Germany, favor indirect application, others, like South Africa, have embraced a more direct approach (Frantziou, 2019; Van der Walt, 2012). The United States, with its state action doctrine, stands out as more restrictive on the direct application of constitutional rights to the private sphere (Balkin, 2014). The EU legal order incorporates various dimensions of horizontality, focusing more on direct effect (Frantziou, 2019).

With this awareness, let us discuss Horizontal Approach in Indian context.

The Indian Constitutional Framework for Horizontal Rights

Unlike many constitutions that focus solely on state action, the Indian Constitution explicitly recognizes horizontal rights in specific provisions:

• Article 15(2): Prohibits discrimination in access to public spaces and services.
• Article 17: Abolishes untouchability.
• Article 23: Prohibits human trafficking and forced labour.
• Article 24: Prohibits child labour in hazardous industries

These provisions directly regulate interactions between private parties, reflecting India’s commitment to addressing deep-rooted social inequalities and how private entities have taken an active part in perpetrating such inequalities.

Case law and institutional interpretation

Indian courts have interpreted fundamental rights in a manner that extends their applicability beyond state actors, particularly through an institutional approach (Bhatia, 2021).

The horizontal application of fundamental rights in India, where these rights are enforceable against private individuals and entities, has been a significant aspect of the country’s constitutional jurisprudence. This approach ensures that fundamental rights are not only protected against state actions but also in interactions between private parties.

In 1982, the Supreme Court addressed this concept in the case of People’s Union for Democratic Rights (PUDR) v. Union of India (1982 AIR 1473). The Court examined the exploitation of labourers involved in the construction projects for the 1982 Asian Games in New Delhi. The petitioners argued that the workers were subjected to inhumane conditions, denied minimum wages, and coerced into labour, violating their fundamental rights. Invoking Article 23, which prohibits trafficking in human beings and forced labour, the Court recognized that forcing individuals to work for less than the minimum wage constitutes a form of forced labour. This judgment expanded the interpretation of forced labour to include economic coercion and underscored the state’s obligation to protect vulnerable workers from exploitation.

Later, in the landmark judgment of Indian Young Lawyers’ Association v. State of Kerala ((2017) 10 SCC 689), commonly known as the Sabarimala case, the Supreme Court further explored the horizontal application of fundamental rights. The case centred on the exclusion of women aged 10 to 50 from entering the Sabarimala Temple, a practice based on notions of purity related to menstruation. Justice D.Y. Chandrachud, in his concurring opinion, invoked Article 17, which abolishes “untouchability” in all its forms. He argued that the exclusion of women based on physiological factors perpetuated a form of social exclusion akin to untouchability, thereby violating constitutional values by a religious trust rather than by a state. He emphasized that such practices stigmatize individuals and have no place in a constitutional order.

More recently, in the case of Kaushal Kishor v. State of Uttar Pradesh (2023) 4 SCC 1), the Supreme Court delved deeper into the horizontal application of fundamental rights. The Court examined whether fundamental rights under Articles 19 and 21 could be enforced against private individuals and entities. In a 4:1 majority decision, the Court held that these rights are indeed enforceable against non-state actors. This, being the latest and a specific judgement on the horizontal approach—with a question being formulated and answered in the judgement—is worthy of consideration for a better understanding.

On Kaushal Kishor judgment on horizontality:

In 2016, a writ petition was filed in the Supreme Court of India seeking action against a U.P. government minister who called a gang rape case a “political controversy”. The petitioner in the case, Kaushal Kishor v. Union of India, also sought a fair investigation and transfer of the trial outside of Uttar Pradesh. The minister then apologized to the Supreme Court, and the matter should have rested, but in October 2017, the case was referred to a five-judge Constitution Bench.

During this time, the Court also took up a Special Leave Petition (Diary) that raised similar questions about statements made by a Kerala government minister and tagged it with the original writ petition. The Constitution Bench then framed five questions for resolution:

• Whether restrictions on free speech could be imposed on grounds not found in Article 19(2) of the Constitution
• Whether fundamental rights could be claimed against non-state actors
• Whether the State has a duty to protect citizens’ rights against threats from private parties
• Whether a minister’s statement could be attributed to the government
• Whether a minister’s statement violating a citizen’s rights constitutes a “constitutional tort”

The majority opinion, delivered by Justice V. Ramasubramanian, held that a fundamental right under Article 19 or 21 can be enforced against persons other than the State or its instrumentalities.

Evolution of “State”: The court traced how the concept of “State” has broadened over time. Initially, fundamental rights were enforced only against the State. However, this understanding expanded to include “Authorities,” “instrumentalities of State,” “agency of the Government,” entities with “governmental character,” those with “monopoly status conferred by State,” those under “deep and pervasive control,” and ultimately to include entities based on the “nature of the duties/functions performed”. This evolution was crucial in recognizing that fundamental rights could be infringed upon by private actors.

Technological Advancements: The court acknowledged the increasing role of private players in infringing upon fundamental rights due to technological advancements. The court pointed out that infringement of the right to privacy was now mostly by private players. If fundamental rights cannot be enforced against non-State actors, these rights would be severely undermined.

Interpretation of Article 21: The court emphasized the broad interpretation of the right to life under Article 21. This right now includes a variety of rights, making it possible to hold non-state actors accountable for violations. The court noted that the focus has shifted from “who the respondent was” to “the nature of the duties/functions performed” by the respondent in determining amenability to jurisdiction under Article 226.

Paramountcy of Personal Liberty: The court highlighted that the right to personal liberty is paramount, and the state has a duty to protect it even from non-state actors. This emphasized the state’s positive obligation to protect citizen’s rights.

Horizontal Effect: The majority acknowledged that some fundamental rights are specifically granted against non-State actors, such as Article 15(2) (a) (access to public places), Article 17 (untouchability), Article 23 (forced labour), and Article 24 (child labour). Additionally, aspects of Article 21, like the right to a clean environment, have been enforced against private parties.

Dissenting Opinion on Horizontality:

Justice Nagarathna’s dissenting opinion offers a different perspective on the issue of horizontality. While agreeing that Article 19(2) is exhaustive regarding restrictions on free speech, she argued that fundamental rights under Articles 19 and 21 cannot generally be enforced against non-state actors. She distinguished between common law rights and fundamental rights, stating that common law remedies are available in cases of infringement by private individuals. She also pointed out that a writ petition to enforce fundamental rights would not be entertained against non-state entities, especially because such matters involve disputed questions of fact.

Exception for Habeas Corpus: Nagarathna J. noted an exception in cases where a writ of habeas corpus is sought against a private person based on Article 21, in which case a constitutional court could hear the matter.

Rejection of Broad Horizontality: The dissenting opinion explicitly rejected the notion of allowing fundamental rights to operate broadly between private citizens. It suggested that doing so would render the tests and doctrines developed by the Court to define “State” under Article 12 redundant.

Despite a seemingly progressive stance, the judgement was criticised for taking upon a question of law on itself without having the explicit need to.

Conceptual Confusion and Conflation: A major point of criticism is that the judgment demonstrated a fundamental misunderstanding of horizontality. The court, according to some, conflated different concepts related to the application of constitutional principles to non-state actors. These concepts include state action, where the state is directly involved; indirect horizontality, where the law affects private parties through interpretation; and situations where the judiciary itself is considered part of the state. This lack of conceptual clarity was seen as a significant flaw, muddling the understanding of how constitutional rights should apply in different contexts. The judgment was criticized for conflating distinct legal approaches, misrepresenting countries’ positions on horizontality, and providing an outdated, inaccurate comparative analysis.

Lack of Engagement with Doctrinal Nuances: The judgment was criticized for not engaging with the nuances of how horizontality is understood and applied in different jurisdictions. Critics argue that the judgment ignores the structure of the Indian Constitution, which explicitly provides for horizontal application of certain fundamental rights (Articles 15(2), 17, 23, and 24), while being silent on others. This is interpreted to mean that the constitution intends for horizontal application only in specific carve-outs. The judgment was criticized for failing to explain why it departs from the obvious result of this textual structure, thereby opening the Pandora’s box of litigation wherein people approach constitutional courts for recourses that exist in common law. The critique went to the extent of arguing that the judgement is ‘unconstitutional informal constitutional changes’—meaning that the judgement has an effect of changing the constitutional goals so radically that it falls under the category of ‘constitutional dismemberments’

Is it so radical?

It is radical to the extent of saying in unequivocal terms that Article 19 and 21, the 2/3 of the commonly known Golden Triangle is enforceable against private parties. However, to say that the judgement falls under the category of ‘constitutional dismemberments’ would be an exaggeration.

While a result of uncalled judicial enthusiasm to philosophize constitutional issues, the judgement merely posits that if there is a fundamental right (Articles 19 and 21) violation by a private party, the right can be enforced.

The Kaushal Kishor judgment should not be interpreted as an open invitation for individuals to approach the Supreme Court for grievances that can be addressed through common law remedies. Instead, it must be understood within the context of Indian realities, where marginalized individuals often lack the means to navigate complex bureaucratic and legal systems to seek redress for violations of their fundamental rights. The Supreme Court has historically served as a beacon of hope for such individuals. In this context, empowering the Court to enforce fundamental rights, particularly the expansive rights under Articles 19 and 21, against private parties is both practical and necessary.

Conclusion

The judgement appreciably, defines, the concepts of vertical and horizontal effects of constitutional rights. It clarifies that constitutional rights have a “vertical effect” when they regulate the conduct of the government and governmental actors in their dealings with private individuals, while they have a “horizontal effect” when they impact the relationships between private individuals. [Para 74]

Moreover, the expansion of this doctrine will not rest on this single case but will develop through multiple rulings, allowing for corrections over time. Viewing it as a radical upheaval is unwarranted.  India’s stance has evolved, with Kaushal Kishor v. State of Uttar Pradesh recognizing the enforceability of Articles 19 and 21 against private entities. While this brings India closer to South Africa and Ireland, one could rightly argue that it lacks doctrinal clarity and risks overextension. Unlike Germany or Canada, India has not developed a robust framework for indirect horizontality, leaving room for judicial refinement.

(The author is part of the organisations legal research team)

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14. Nerken, I., 1977. A New Deal for the Protection of Fourteenth Amendment Rights: Challenging the Doctrinal Bases of the Civil Rights Cases and State Action Theory. Harvard Civil Rights-Civil Liberties Law Review, 12(2), pp.297-329.
15. O’Cinneide, C., 2007. Ireland: Irish constitutional law and direct horizontal effect—a successful experiment? In D. Oliver & J. Fedtke (Eds.), Human rights and the private sphere: A comparative study (pp.173-192). Routledge.
16. Rodriguez Liboreiro, A., 2007. Spain: A jurisdiction recognising the direct horizontal application of human rights. In D. Oliver & J. Fedtke (Eds.), Human rights and the private sphere: A comparative study (pp.213-232). Routledge.
17. Sadurski, W., 1997. Legitimacy and Reasons of Constitutional Review after Communism. In W. Sadurski (Ed.), Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts (pp.173-190). Kluwer Law International.
18. Saunders, C., 2005. Constitutional Rights and the Common Law. In A. Sajo & R. Uitz (Eds.), The Constitution in Private Relations (pp.87-110). Eleven International Publishing.
19. Smits, J., 2010. Democracy and (European) private law: A functional approach. In Globalization and Private Law. Edward Elgar Publishing.
20. Thomas, J., 2016. Our rights, but whose duties? Re-conceptualizing rights in the era of globalization. In T. Kahana & A. Scolnicov (Eds.), Boundaries of State, Boundaries of Rights: Human Rights, Private Actors, and Positive Obligations (pp.1-26). Cambridge University Press.
21. Van der Walt, J., 2012. Rethinking the Fundamental Structures of the State with Reference to the Horizontal Application of Fundamental Rights. In M. Sachs, H. Siekmann, H-J. Blanke, J. Dietlein, M. Nierhaus, & G. Puttner (Eds.), Der grundrechtsgeprägte Verfassungsstaat. Festschrift für Klaus Stern zum 80. Geburtstag (pp.1-20). Duncker & Humblot.
22. Walkila, S.H.I., 2016. Horizontal effect of fundamental rights in EU law. Europa Law Publishing.
23. Weinrib, L.E. and Weinrib, E.J., 2001. Constitutional values and private law in Canada. In D. Friedmann & D. Barak-Erez (Eds.), Human rights in private law (pp.41-72). Hart Publishing.

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How this manifests with respect to remand and police custody has already been discussed here. This time, we move a little away from personal freedoms and come to property of the accused. What does BNSS allow to be done to the property of an accused person or property that is a ‘proceeds of crime?’ And how does such facilitation by the BNSS fare against the realities of Indian Criminal Justice system. This is the point of discussion forthwith.

Property and criminal justice system

From the Mauryans to the Romans—every kingdom gave itself the power to confiscate the property of criminals. In the ancient and medieval times—we see on paper that if someone is a criminal—i.e., if someone has committed a criminal act and got some value out of it, and if it is proved as such, the property arising out of such criminal act would be forfeited with or without a fine.[1][2] For example, if someone stole cattle, they’d have to give back the cattle and may be some fine apart from the punishment.[3] This got carried onto today. In the CrPC, 1898- the predecessor of CrPC 1973—there were provisions to attach the property until a fine is paid or if there is a dispute over the possession of property that is causing disturbance to peace.[4]

However, with the introduction of the BNSS, a new regime has unfolded. A regime in which property could be attached if the police reasonably believe something (property) to be derived from a crime and could even be liquidated before the crime is proven. Many use the word ‘medieval’ to describe any archaic notions and paradigms and in this case of BNSS and property attachment, using medieval sounds like a medal.

The transition from the Code of Criminal Procedure (CrPC), 1973, to the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, marks a critical shift, particularly in relation to police and judicial powers over property attachment. While CrPC provided limited powers regarding the seizure and attachment of property, especially immovable assets, BNSS introduces an expansive approach, broadening the scope of attachment beyond absconding accused persons to encompass all criminal activities. The Prevention of Money Laundering Act, 2002 (PMLA), as a special law, had already established attachment provisions targeting financial crimes. However, BNSS now extends similar provisions across all criminal cases, raising concerns about the extent of police and judicial discretion.

Attachment of property under CrPC: limited and case-specific

What is an ‘attachment’ is a question we need to have answer for, before any further discussion can happen. Attachment of the property means that the properties in question are held in custodia legis (in the custody of the law).

Under the CrPC, property attachment was primarily governed by Sections 82, 83, and 102. These provisions delineated different contexts in which property could be seized or attached. Section 82 provided for the proclamation of an absconding accused, requiring them to appear before the court within a stipulated period. If the accused failed to comply, Section 83 allowed courts to attach both movable and immovable property of the absconding individual. This attachment served as a coercive measure to ensure the accused’s presence in court. The fundamental premise of this provision was to deal with fugitives rather than to target assets suspected to be linked to criminal activities.

Section 102, on the other hand, was a police power confined strictly to the seizure of movable property. It enabled law enforcement to seize property suspected of being stolen or involved in an offense. However, this provision did not extend to immovable property, a limitation clarified by the Supreme Court in Nevada Properties Private Limited v. State of Maharashtra (2019).[5] The court explicitly ruled that Section 102 only permitted the seizure of movable property, thereby excluding any interpretation that allowed for the attachment of immovable assets. Consequently, under the CrPC, the ability of law enforcement to interfere with immovable property was primarily restricted (in general terms) to cases of absconding accused under Section 83A.[6]

Why did the Supreme Court say that Section 102 of the CrPC only applied to movable property?

Section 102(1) states as follows: Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the Commission of any offence.

A literal interpretation of the word ‘any property’ would enable a court to arrive at both movable and immovable property. The court however frowned at giving the power to the police officers to seize immovable property. It stated as follows:

“In case and if we allow the police officer to ‘seize’ immovable property on a mere ‘suspicion of the commission of any offence’, it would mean and imply giving a drastic and extreme power to dispossess etc. to the police officer on a mere conjecture and surmise, that is, on suspicion, which has hitherto not been exercised. We have hardly come across any case where immovable property was seized vide an attachment order that was treated as a seizure order by police officer under Section 102 of the Code. The reason is obvious. Disputes relating to title, possession, etc., of immovable property are civil disputes which have to be decided and adjudicated in Civil Courts. We must discourage and stall any attempt to convert civil disputes into criminal cases to put pressure on the other side.”

Here, the court recognised the power of police, the inherent power imbalance and therefore did not go with the reading which would have resulted in Section 102 applying to immovable property.

BNSS’s expansion: section 106 & section 107

The BNSS largely retains Sections 82 and 83 from the CrPC but significantly alters the landscape of property attachment by bifurcating Section 102 into two separate provisions—Sections 106 and 107. Section 106 of BNSS serves as a direct successor to Section 102 of the CrPC, retaining its essence by allowing police to seize movable property linked to a criminal offense. However, a major development appears in Section 107, which significantly expands the police and judicial powers regarding property attachment. We could understand Section 107 of BNSS (Police power to apply for attachment and court’s power to liquidate the property) as a combination of Section 102 of CrPC (Police power to seize) plus Section 83 of the CrPC (Attaching the property of the absconder).

Section 107 of BNSS allows the police to apply to a magistrate for the attachment of property reasonably believed to be proceeds of a crime. Unlike Section 83 of the CrPC, which was confined to absconding accused, Section 107 applies to any criminal activity, making it far more expansive. The magistrate, upon satisfaction that the property is linked to a crime, may issue a Show Cause Notice (SCN) to the owner. If the owner fails to respond within 14 days, the magistrate can order an ex-parte attachment, meaning that property can be attached without the owner’s presence or contestation. This represents a dramatic shift in power, allowing attachment of property at an early stage of criminal proceedings without a final conviction.

Immovable property too can be attached under section 107

Under Section 107, the terms “property” and “proceeds of crime” are defined in Section 111. “Proceeds of crime” refers to any property that has been gained directly or indirectly from criminal activities, including those involving money transfers. “Property,” on the other hand, is broadly defined to include all types of assets—whether physical or intangible, movable or immovable. It also covers documents proving ownership or interest in such assets, as well as any property obtained through proceeds of crime. This broad definition means that even assets not directly involved in a crime but somehow linked to it can be attached or liquidated, widening the scope of police action under BNSS.

Liquidation of assets under section 107

A controversial aspect of Section 107 is its provision for liquidation of the attached property before the trial concludes. If the court determines that the property is indeed the proceeds of crime, it may order its liquidation and distribution to victims or, in the absence of claimants, its forfeiture to the government. This raises serious concerns about property rights, particularly in cases where the accused is later acquitted but their property has already been liquidated.

This is what the relevant provision related to liquidation says:

Section 107(6): (6) If the Court or the Magistrate finds the attached or seized properties to be the proceeds of crime, the Court or the Magistrate shall by order direct the District Magistrate to rateably distribute such proceeds of crime to the persons who are affected by such crime.

What we do not get to see in this sub-section is a requirement for the court to first satisfy itself that the crime has occurred, and the property is a proceed of such crime.  All it needs to satisfy itself is that the property is a proceed of crime. Which crime? We will not know.

Expansive powers impacting civilians

One of the most concerning aspects of Section 107 is its potential for misuse against ordinary civilians. Consider a case where a small business owner is falsely implicated in a financial fraud case. Under BNSS, their property could be attached and liquidated before they even get a chance to prove their innocence. Unlike under PMLA, which limits attachment to scheduled offenses, BNSS allows attachment for any criminal activity, meaning even minor accusations could lead to serious consequences. If the business owner is later acquitted, there is no clear mechanism for restoring their property, as the law does not provide for post-liquidation restitution.

Similarly, consider a tenant whose landlord is accused of a crime. Under Section 107, if the authorities suspect that rent payments were linked to criminal proceeds, the property could be attached. The tenant could be evicted without any means of legal recourse, illustrating how BNSS’s sweeping powers could inadvertently impact uninvolved third parties.

Shifting power to the police and the role of judicial oversight

A crucial issue with BNSS’s Section 107 is the unprecedented shift in power to the police, who serve as the initiators of the attachment process. Under this provision, law enforcement officers have the discretion to determine whether a property is linked to a crime and seek a magistrate’s order for its attachment. This centralization of authority with the police raises significant concerns, as it places immense power in their hands over civilians’ property rights.

Given India’s historical challenges with police accountability and instances of abuse of power, the ability of law enforcement to attach and cause liquidation of property before a trial is concluded is particularly alarming. Without strict judicial vigilance, there is a high risk that Section 107 could be misused for political vendettas, personal grudges, or as a coercive tool to extract compliance from individuals accused of minor offenses. Judicial officers must exercise stringent oversight to ensure that ex-parte attachments are granted only in the most compelling cases, and that property liquidation does not occur without exhaustive scrutiny of the alleged criminal link. If the judiciary fails to curb potential excesses, Section 107 could become a powerful mechanism for state overreach at the cost of due process and individual rights.

Lack of restoration despite mention in section’s marginal note

A striking irony in Section 107 is the mention of “restoration” in its marginal note, despite no actual provision for returning property once liquidated. This is what the marginal note says: Attachment, forfeiture or restoration of property.

This contradiction is concerning because, once an asset is liquidated, it ceases to exist in its original form, making restoration impossible even if the accused is acquitted. This deviates from principles of justice, where wrongful deprivation should ideally be rectified. Unlike PMLA, which offers procedural checks before permanent forfeiture, BNSS provides no such recourse, exacerbating concerns about potential injustices.

Conclusion

Bharatiya Nagarik Suraksha Sanhita (BNSS), despite being positioned as a general statute intended to replace and modernize the Code of Criminal Procedure, has introduced attachment and liquidation provisions that reach beyond the stringent framework once reserved for specialized laws like PMLA. By normalizing expansive police powers—even in cases that fall outside the realm of serious financial crimes—BNSS tips the balance starkly in favour of law enforcement, often at the expense of individual property rights and due process. The risk here is not only theoretical: without clear judicial safeguards and robust accountability mechanisms, individuals and even third parties can find themselves embroiled in sweeping asset seizures with little chance of recuperation if later proven innocent. Rather than reinforcing the principle that one is presumed innocent until proven guilty, these new provisions hasten punitive actions that can effectively punish the accused long before any judicial determination. This gap—between the power of the state and the shrinking protections afforded to its citizens—poses a grave concern for the integrity of India’s criminal justice system. If left unchecked, these types of provisions could erode core democratic principles, overshadow existing specialized legislation, and embolden overreach by authorities, thereby undermining the very notion of Suraksha the BNSS promises to uphold.

(The legal researcher is part of the organisations legal research team)

[1] Ubale, S.V. and Salgar, P.B., 2021. Evaluating the Concept of Corruption through Kautilya’s Arthashastra: A Comparative Study in View of Modern Application. Issue 3 Int’l JL Mgmt. & Human., 4, p.4025.

[2] Loewenstein, K., 1973. The Administration of Justice. In The Governance of ROME (pp. 179-191). Dordrecht: Springer Netherlands.

[3] García, A.B.Z., 2022. Confiscation of assets as an accessory penalty. Revista Diálogos Mediterrânicos, (22), pp.95-111.

[4] Section 139, CrPC, 1898. Available at: https://cvc.gov.in/files/vigilance-manual-pdf/vm21ch5/vm17ch5/Code%20of%20Criminal%20Procedure%201898%20(repealed).pdf

[5] [2019] 15 S.C.R. 223

[6] A separate Chapter VII A exists for dealing with attachments of “proceeds of crimes” which involve other countries.

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The post BNSS empowers law enforcement and judiciary with sweeping authority over property: a mightier state, a meeker citizen appeared first on SabrangIndia.

Background of the case

The land in question originally belonged to Chuchrung, who passed it down to his two sons, Mardan and Puni Ram. Both sons inherited the property jointly. Mardan and his wife died in 1951, leaving behind three daughters—Jagmati, Tilobai, and Nanhibai—while Puni Ram passed away in 1960. The plaintiffs, descendants of Puni Ram, claimed exclusive ownership of the property, arguing that since Mardan died in 1951—before the HSA, 1956, came into force—his daughters could not inherit the property under the then-prevailing customary laws or Hindu law. According to their argument, Mardan’s share reverted to his brother Puni Ram. Conversely, the defendants, representing Mardan’s daughters and their descendants, argued that Sawara customs should govern the inheritance and that they had a rightful claim to the property.

The Act, which granted inheritance rights to daughters, came into effect in 1956, years after Mardan’s death. Prior to its enactment, Hindu law and customary practices often excluded women from inheriting property. The trial and appellate courts relied on the argument that the Sawara tribe had adopted Hindu customs and principles, thereby disqualifying Mardan’s daughters from inheriting under the legal framework of that time.

However, the High Court rejected this interpretation, pointing out that Section 2(2) of the HSA, 1956, explicitly excludes Scheduled Tribes unless specifically notified by the government. The High Court emphasised that tribal customs—not Hindu law—should govern the inheritance in this case. However, it allowed the property to the daughters on the basis of justice, equity and good conscience.

Supreme Court’s judgment

The Supreme Court upheld the High Court’s ruling, reaffirming that the HSA, 1956, did not apply to Scheduled Tribes unless expressly notified. However, recognising the principles of justice, equity, and good conscience, the Court allowed Mardan’s daughters and their descendants a share of the property. This balanced approach acknowledged the need to respect tribal customs while addressing the broader issue of gender inequality in inheritance rights.

The judgment underlined that denying Mardan’s daughters any claim to the property solely because of the timing of their father’s death and the non-applicability of statutory law would perpetuate unfairness. By invoking equitable principles, the Court ensured that the daughters were not left entirely dispossessed, setting a precedent for similar disputes involving tribal customs and gender justice.

Evolution of Women’s Property Rights The case reflects India’s broader struggle to establish gender equality in property rights. Historically, women were excluded from inheritance under patriarchal customs and laws.

• Before Independence: Women’s property rights were dictated by customary laws, which heavily favoured male heirs. Women had little to no economic independence.
• Hindu Women’s Right to Property Act, 1937: This marked a step forward by granting limited inheritance rights to Hindu widows, although these rights were often subordinate to those of male relatives.
• Hindu Succession Act, 1956: The Act aimed to eliminate gender-based discrimination, granting women absolute ownership under Section 14. However, loopholes allowed fathers to disinherit daughters by relinquishing their shares.
• Hindu Succession (Amendment) Act, 2005: This amendment ensured equal rights for daughters in ancestral property, placing them on par with sons. The landmark case of Vineeta Sharma vs. Rakesh Sharma (2020) [(2020) 9 SCC 1] further reinforced these rights. In this case, the Court ruled that daughters have equal coparcenary rights in Hindu joint family property by virtue of their birth, irrespective of whether their father was alive when the Hindu Succession (Amendment) Act, 2005, came into effect. This judgment clarified that the 2005 amendment is retroactive, applying to daughters born before or after its enactment, thereby ensuring they possess the same rights and liabilities as sons in ancestral property.

Challenges for tribal (Adivasi) women

Despite advancements in statutory law, tribal women often remain excluded from inheritance due to customary practices. Section 2(2) of the HSA, 1956, preserves tribal autonomy by excluding Scheduled Tribes from its ambit unless specifically notified. While this protects cultural traditions, it often entrenches gender inequality.

Why the case matters

The case of Tirith Kumar vs. Daduram highlights the importance of interpreting laws in context. The timing of Mardan’s death and the inapplicability of the HSA, 1956, raised questions about how inheritance rights should be determined for Scheduled Tribes. By invoking equitable principles, the Supreme Court ensured that the daughters were not left entirely without a claim, setting a significant precedent for future cases involving tribal communities. The court reiterated a suggestion/recommendation made in Kamla Neti v. LAO[(2023) 3 SCC 528] to the Central Government in which it directed to examine the issue of survivorship rights for female tribals and consider amending the Hindu Succession Act to withdraw the exemptions that make it inapplicable to Scheduled Tribes.

While judicial interventions address some inequities, systemic reforms are necessary. Extending the provisions of the HSA, 2005, to Scheduled Tribes could provide a more inclusive framework for property rights. However, such reforms must balance the need for gender equality with the preservation of tribal autonomy and cultural identity.

The judgement of the Supreme Court may be read here

(The author is part of the organisations legal research team)

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Factual Background

The case arose from an FIR filed against the respondent, following allegations of possessing child pornographic material. The forensic analysis of the respondent’s mobile phone revealed two video files depicting child sexual abuse and over a hundred other pornographic files. These findings led to charges under Section 15(1) of the POCSO Act and Section 67B of the IT Act. However, the High Court of Madras quashed the criminal proceedings, reasoning that the essential elements of the offenses were not met. This prompted an appeal to the Supreme Court by child rights organizations.

Legal issues framed

The Supreme Court examined several critical questions:

1. The scope and interpretation of Section 15 of the POCSO Act, particularly the distinctions between sub-section(s) (1), (2) and (3) respectively of Section 15 of the POCSO?
2. The application of the doctrine of constructive possession and its implications for inchoate offenses.
3. The operation of the statutory presumption of culpable mental state under Section 30 of the POCSO Act.
4. Whether the High Court’s quashing of the chargesheet adhered to legislative intent and judicial principles.

Court’s reasoning

Purposive interpretation: safeguarding legislative intent

The Supreme Court adopted a purposive interpretation to align the statutory provisions with their legislative objectives. Recognizing the inadequacy of a strict textual approach, the Court emphasized the broader aim of protecting children from exploitation. Key observations included:

1. Section 15: Designed to comprehensively address the harm posed by possession, storage, and dissemination of CSEAM. It seeks to criminalize preparatory actions and omissions that contribute to child exploitation. [Paragraph 76]
2. Section 67B: Specifically targets the electronic transmission, creation, and storage of child pornographic material, focusing on acts conducted via digital platforms. [Paragraph 151]

The Court emphasized that purposive interpretation is essential to ensure the evolving challenges posed by technology and digital platforms are addressed effectively. It warned against narrow readings that could undermine legislative intent. [Paragraph 190]

The Court highlighted the complementary roles of Section 67B and Section 15 of the IT Act. Section 67B targets digital actions like creating, transmitting, or storing CSEAM, holding online platforms accountable. In contrast, Section 15 covers broader scenarios, including physical possession, constructive possession, and failure to report such content, whether stored digitally or physically.

Detailed interpretation of Section 15 as per Supreme Court:

1. Independent offenses within Section 15:
   • Section 15(1): Penalizes failure to delete, destroy, or report CSEAM to authorities in order to transmit it. No actual sharing need to occur; intention is sufficient. This provision places a legal obligation on individuals to act responsibly when they come into possession of such material, even inadvertently. The Court clarified that this applies irrespective of whether the individual intends to disseminate the material. [Paragraph 87]
   • Section 15(2): Criminalizes acts of facilitating, transmitting, or disseminating CSEAM for purpose of either transmitting, propagating, displaying or distributing the same in any manner. It highlights culpability in cases where individuals actively enable the spread of such material, including sharing via digital platforms. [Paragraph 88]
   • Section 15(3): Targets possession of CSEAM with intent for commercial exploitation. The heightened culpability under this subsection reflects the gravity of exploiting such material for monetary or other material gains. [Paragraph 79]

The Supreme Court clarified that each subsection addresses specific dimensions of harm, ensuring that both active and passive forms of involvement are penalized.

1. Constructive possession: The Court elaborated that constructive possession includes situations where an individual has control or the ability to control CSEAM without necessarily having physical possession. For instance, accessing and failing to delete such material from an online platform qualifies as constructive possession under Section 15(1). This interpretation ensures accountability in digital contexts. [Paragraph 118]
2. Mens Rea and inchoate offenses: Section 15 criminalizes preparatory acts by focusing on the intention behind possession or storage. This approach aims to deter individuals from actions that could lead to further exploitation, even if the harmful act is incomplete. The Court highlighted that the provision’s preventive framework aligns with the overarching aims of the POCSO Act. [Paragraph 81]

Statutory presumption under Section 30 of the POCSO Act

Mandatory but rebuttable presumption: Section 30 shifts the burden of proof to the accused once foundational facts—such as possession or failure to act—are established. The Court emphasized that this presumption serves as a critical tool to counteract the difficulty of proving intent in cases involving CSEAM. [Paragraph 156]

Errors in the High Court’s reasoning

The Supreme Court identified errors in the High Court’s judgment:

1. The High Court misinterpreted the scope of Section 15, treating it as reliant on actual dissemination.
2. It overlooked the doctrine of constructive possession and the statutory presumption under Section 30.

Observations and recommendations

1. Terminology Reform: The Court recommended replacing “child pornography” with “child sexual exploitation and abuse material” (CSEAM) to reflect the exploitative nature of such offenses accurately. [Paragraph 227]
2. Role of Digital Intermediaries: The Court underscored the obligations of online platforms to promptly report and remove CSEAM, emphasizing strict enforcement under the IT Act and POCSO Rules.  [Paragraph 254]
3. Awareness Initiatives: It called for nationwide campaigns, including sex education and digital literacy programs, to prevent child exploitation and equip individuals to report such offenses. [Paragraph 248]

4. Recommendation to Government

The Supreme Court urged the Union to form an Expert Committee to design programs on health, sex education, and POCSO awareness for children, ensuring robust child protection and education. It also recommended amending Section 15(1) of POCSO to enable public reporting of CSEAM through an online portal. [Paragraph 260]

Broader implications

This judgment reinforces a preventive and deterrent framework for addressing child exploitation. By adopting a purposive interpretation and emphasizing systemic reforms, the Court has paved the way for more effective enforcement of child protection laws.

Its emphasis on intent, accountability, and preventive measures ensures justice in the present case and sets a robust precedent for future interpretations of the POCSO Act and IT Act.

(The author is part of the organisations  legal research team)

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Relevant provisions

Article 21 of the Indian Constitution: This article guarantees the right to life and personal liberty, and states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Sections 413 and 414 of the Criminal Procedure Code (CrPC) of 1973: These sections outline the procedure for the execution of death sentences.

Section 413 states: “When in a case submitted to the High Court for the confirmation of a sentence of death, the Court of Session receives the order of confirmation or other order of the High Court thereon, it shall cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary.”

Section 414 states: “When a sentence of death is passed by the High Court in appeal or in revision, the Court of Session shall, on receiving the order of the High Court, cause the sentence to be carried into effect by issuing a warrant.”

These sections essentially mean that the sessions court should issue a warrant, after it gets a confirmation of a death sentence by the High Court.

Articles 72 and 161 of the Indian Constitution: These articles empower the President of India and the Governors of states, respectively, to grant pardons, reprieves, respites, or remissions of punishment.

The Supreme Court has held in Shatrughan Chauhan vs. Union of India [ 4 (2014) 3 SCC 1] that the exercise of the powers bestowed by Articles 72 and 161 is not a mere prerogative but a constitutional obligation that must be fulfilled with due care and diligence. The key terms associated with these powers are:

1. Pardon: This completely absolves the individual of the offense, removing both the conviction and the sentence, along with any associated disqualifications. The individual is treated as innocent, as if the offense had never been committed.
2. Commutation: This involves substituting a form of punishment with a less severe one. For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to simple imprisonment.
3. Remission: This entails reducing the duration of the sentence without altering its nature. For instance, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year, but the imprisonment remains rigorous.
4. Respite: This refers to awarding a lesser sentence in place of the one originally imposed, due to special circumstances such as the physical disability of the convict or the pregnancy of a woman offender.
5. Reprieve: This implies a temporary suspension of the execution of a sentence, particularly a death sentence, to allow the convict time to seek a pardon or commutation.

It is important to note that the President’s pardoning powers are broader than those of a Governor. The President can grant pardons in cases involving court-martial sentences and can pardon death sentences, whereas a Governor does not have these powers.

These clemency powers serve as a mechanism to correct potential judicial errors, provide relief from unduly harsh sentences, and uphold the principles of justice and mercy within the Indian legal framework.

Facts of the case

The case involved two convicts, Pradeep Yashwant Kokade and Purushottam Dasrath Borate, who were sentenced to death for the rape and murder of a young woman. After the confirmation of their sentences by both the High Court and the Supreme Court, the convicts filed mercy petitions with the Governor of Maharashtra and subsequently with the President of India. While both petitions were ultimately rejected, the process was marred by significant delays.

Further compounding the issue was the inordinate delay by the Sessions Court in issuing the warrants for the execution of the death sentence. This prompted the convicts to challenge the delays, arguing that they amounted to a violation of their fundamental rights under Article 21.

The Supreme Court, while upholding the High Court’s decision to commute the death sentence to a fixed term of 35 years, analysed the various stages of the delay. They found that there were undue and unexplained delays in both the processing of the mercy petitions by the executive authorities and the issuance of the execution warrant by the Sessions Court.

The Court highlighted three distinct phases of delay:

• The period between the filing of the mercy petitions with the Governor of Maharashtra and their subsequent rejection.
• The time taken for the processing and disposal of the mercy petitions filed with the President of India.
• The delay in the issuance of the execution warrant by the Sessions Court after the rejection of the mercy petitions by the President.

In examining each of these phases, the Court remarked that the approach of the executive, and “especially the state government, has been casual and negligent. For instance, the Court pointed out the five-month gap between the confirmation that the convicts had not filed a review petition and the preparation of a note for the Governor’s consideration regarding the mercy petition. The Court noted that this time was spent on unnecessary correspondence between various officials and could have been avoided with more proactive and efficient handling of the matter [Paras 30, 36].

The Supreme Court, in its judgment, underscored the importance of a timely and efficient legal process, especially in cases involving the death penalty.

The Court held that inordinate delays in carrying out a death sentence cause mental agony and psychological distress to the convict [Para 42]. This, the Court concluded, is antithetical to the principles enshrined in Article 21 and constitutes a violation of the convict’s fundamental rights.

The judgment, therefore, draws heavily on the principles established in previous cases like Shatrughan Chauhan & Anr. v. Union of India & Ors. and Triveniben v. State of Gujarat [(1989) 1 SCC 678] to emphasize that while the death penalty itself may be constitutional in certain “rarest of rare” cases, the process leading to its execution must adhere to the principles of fairness, justice, and due process [Para 20]

To address the systemic issues leading to these delays, the Supreme Court issued a comprehensive set of guidelines aimed at streamlining the process of handling mercy petitions and issuing execution warrants [Para 43]. These guidelines included:

• Establishing Dedicated Cells: The Court directed all State Governments and Union Territories to establish dedicated cells within their Home or Prison Departments specifically to handle mercy petitions. These cells, staffed by designated officers, are tasked with ensuring the prompt and efficient processing of mercy petitions within stipulated timeframes.
• Improving Coordination and Communication: The Court emphasized the need for better coordination and communication between the various stakeholders involved in the process, including the prison authorities, the police, the State Government, and the Sessions Court. They encouraged the use of email for correspondence to expedite communication, except in cases involving confidential information.
• Proactive Role of the Sessions Court: The Court directed the Sessions Courts to take a more proactive role in overseeing the process. They instructed the Sessions Court to periodically review the status of the cases where death sentences have been awarded and to issue notices to the State authorities to ensure that they are kept abreast of the progress of appeals, review petitions, and mercy petitions.
• Timely Issuance of Execution Warrants: The Court also outlined a detailed procedure for the Sessions Court to follow in issuing execution warrants. This includes:

• The mandatory issuance of notice to the convict informing them of the intent to issue a warrant.
• The provision of legal aid to the convict to challenge the warrant if they so desire.
• The specification of a precise date and time for the execution in the warrant, as opposed to a range of dates, to eliminate uncertainty for the convict.
• A mandatory gap of at least 15 days between the date the convict receives the warrant and the scheduled execution date, allowing them sufficient time to pursue legal remedies or meet their families.

The Court’s emphasis on ensuring that convicts receive proper notice, access to legal aid, and a reasonable time frame to prepare for the execution is crucial in upholding their fundamental rights. The judgment also stresses the importance of providing convicts with a clear and definitive execution date to minimize the psychological distress caused by prolonged uncertainty.

In addition to these structural changes, the Court directed all State Governments to issue formal office orders or executive orders incorporating the guidelines outlined in the judgment, ensuring that these directives are implemented effectively.

The detailed guidelines and directions issued by the Court aim to address the systemic delays that have plagued the execution process, ensuring that it adheres to the principles of fairness, justice, and human dignity enshrined in the Indian Constitution. This judgment is likely to have a lasting impact on the administration of capital punishment in India, setting a precedent for greater accountability, transparency, and efficiency in the legal process.

(The author is part of the organisations legal research team)

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The post Inordinate delay in considering Mercy petitions cause agony and psychological stress for the Convict: Supreme Court appeared first on SabrangIndia.

Recently, Rahul Gandhi and Mallikarjun Kharge – leaders of opposition in Lok Sabha and Rajya Sabha registered their dissent over the selection process of the NHRC Chairperson calling it a ‘fundamentally flawed’ and a ‘pre-determined’ exercise that ignored consultation and consensus. The dissent note has been made public and can be accessed here.

The previous Chairperson Justice Arun Mishra was appointed to the post 9 months after he retired from the Supreme Court. Arun Mishra had not only described PM Modi as a versatile genius at a public function while being a judge at the Supreme Court, but he also later praised the government for their ‘untiring’ efforts to foster peace in Jammu & Kashmir while being the NHRC Chairperson. The appointment of Justice Arun Mishra as NHRC Chairperson did attract criticism.

From being a flagship institution that people relied on for addressing human rights grievances to its current state of diminished credibility, the reasons for the NHRC’s decline lie not just in the current establishment’s zeal to politicise institutions but also in its inherent structural flaws. This article will highlight one of such structural flaws—lack of independence due to flaws in the appointment process.

The National Human Rights Commission (NHRC) of India was established on October 12, 1993, under the Protection of Human Rights Act (PHRA) of 1993, later amended in 2006 and 2019. As an independent statutory body, the NHRC serves as the watchdog for human rights in the country, ensuring the protection of rights related to life, liberty, equality, and dignity as guaranteed by the Constitution of India and international covenants.

Composition and appointment

The NHRC is a multi-member body comprising a chairperson, five full-time members, and seven deemed members. The Chairperson is typically a retired Chief Justice of India or a Supreme Court judge. The full-time members include:

• One member who is or has been a Judge of the Supreme Court of India.
• One member who is or has been the Chief Justice of a High Court.
• Three members appointed from among persons knowing of, or practical experience in, matters relating to human rights, with at least one being a woman.
• The deemed members are the Chairpersons of the National Commissions for Scheduled Castes, Scheduled Tribes, Minorities, Women, Backward Classes, and the Chief Commissioner for Persons with Disabilities.

Appointments to the NHRC are made by the President of India based on the recommendations of a Selection Committee comprising the Prime Minister (Chairperson), the Speaker of the Lok Sabha, the Deputy Chairman of the Rajya Sabha, the Leaders of the Opposition in both Houses of Parliament, and the union home minister. The Chairperson and member serve for a term of three years or until they reach the age of 70 years whichever is earlier and are eligible for reappointment following the completion of their term.

The President can remove the chairperson or any member of the office if she/he is adjudged insolvent or; engages during his term of office, in any paid employment outside the duties of his office or; is unfit to continue in office because of the infirmity of mind or body or; is of unsound mind and stands so declared by a competent court or; is of unsound mind and stands so declared by a competent court or; is convicted and sentenced to imprisonment for an offence. The President can also remove the Chairperson or any members on the grounds of proven misbehaviour or incapacity. The procedure for the removal however involves referring the matter to the Supreme Court for an inquiry and removing the member on the court’s advice.

Functions and powers

The NHRC is endowed with a broad mandate to promote and protect human rights in India. Its key functions include:

• Inquiry and Investigation: The Commission can suo moto take cognizance of complaints of human rights violations or negligence in preventing such violations by public servants. It can also intervene in ongoing judicial proceedings involving human rights issues with court approval.
• Inspection of Custodial Institutions: The NHRC has the authority to visit jails and other state-controlled institutions to assess the living conditions of inmates.
• Review of Safeguards: It reviews legal safeguards for the protection of human rights and suggests necessary remedial measures.
• Research and Awareness: The Commission undertakes and promotes research in the field of human rights.
• Encouragement of NGOs: It encourages the efforts of non-governmental organizations and institutions working in the field of human rights.

While the NHRC can make recommendations to the government, its decisions are not legally binding. However, it plays a crucial role in highlighting human rights issues and advocating for policy changes.

The NHRC did some pathbreaking work in cases like the Gujarat Carnage case in which it had taken suo moto cognizance through media reports and initiated inquiry into the violence; approached the Supreme Court on behalf of riot victims.  In 1997, the NHRC wrote to Chief Ministers regarding the procedure to be followed in cases of deaths in police encounters. This was done based on a complaint brought before the commission by the Andhra Pradesh Civil Liberties Committee (APCLC). Also in 1997, and thereafter right until 2004, The National Human Rights Commission (NHRC), which went through 2,097 cases of killing of youth and mass cremation of their bodies by the Punjab police during the peak of militancy in the State, has ordered a relief of Rs. 27.94 crore to the families of 1,513 victims of such extra-judicial killings. In both the Gujarat carnage case (2002-2004 onwards) and in the Punjab Disappearances case (1997-2004) the NHRC exercised its statutory rights and moved Article 32 petitions on the issue before the Supreme Court of India. Critically, on draconian anti-terror laws like POTA and TADA too, the NHRC has taken a strong stand. In 2000, “Prevention of Terrorism Bill, 2000: NHRC’s Opinion” The National Human Rights Commission has taken the view that there is no need for the enactment of a law based on the Draft Prevention of Terrorism Bill, 2000. This unanimous view was taken at a meeting of the Full Commission held on 11 July 2000 and elaborated in a detailed Opinion issued on July 14, 2000. Earlier the NHRC Chair had even written to all Members of Parliament asking them to repeal the stringent Terrorist and Disruptive Act.

Issues with NHRC

There are multiple issues that restrict the scope of NHRC and hinder it from realising its true potential to be an active safeguarding entity of human rights in India. Not only are its recommendations not binding on the government, but it also has jurisdictional limitations i.e. it cannot address violations by private individuals or entities. It does not have the authority to penalise the authorities that fail to implement its recommendations.

The credibility crisis of the NHRC is not just about operational inefficiencies but is rooted in an appointment process dictated by the ruling government. If the government wants a toothless NHRC, it can have one with little effort. Only an independent NHRC, free from political interference, can demand the resources and autonomy it needs but when led by those who merely echo the government’s line, it risks sinking deeper into irrelevance, eroding its very purpose.

What could constitute reform?

There is a serious need to re-imagine how the appointments are made to NHRC.

The Sub-Committee on Accreditation of the GANHRI noted that the current selection committee does not sufficiently promote broad consultation or participation in the selection process. It also noted that the current process does not maximise the number of candidates from a wide range; that the committee does not provide for the formal involvement of civil society organisations in the process. It had suggested a formalisation process to publicise vacancies broadly, to maximise the number of potential candidates from a wide range of societal groups, and to assess applicants on the basis of pre-determined, objective, and publicly available criteria.

The Paris Principles, a set of international guidelines for National Human Rights Institutions (NHRIs), layout key principles regarding the composition and appointment of NHRIs to ensure their independence and pluralism. Principle 5 emphasizes that the composition and appointment process should guarantee pluralistic representation of various social forces involved in human rights protection.

This principle highlights the importance of diverse perspectives within the NHRI, enabling it to effectively address a wide range of human rights concerns. The selection process, whether through elections or other means, must ensure the inclusion of representatives from various segments of society.

The Paris Principles specifically recommend the inclusion of representatives from:

• Non-governmental organizations (NGOs) focus on human rights, racial discrimination, trade unions, and professional organizations.
• Different philosophical or religious schools of thought.
• Academia, including universities and qualified experts.
• Parliament
• Government departments, but only in an advisory capacity.

A first step would be the incorporation of these principles in letter and spirit in the PHRA, 1993.

Conclusion

The National Human Rights Commission of India stands at precarious crossroads, embodying both the promise of justice and the peril of irrelevance. Yet, all is not lost. The challenges facing the NHRC, though significant, are not insurmountable. Incorporating the Paris Principles in full—ensuring transparency, pluralism, and independence in its appointments—is an essential first step. Equally critical is the empowerment of the NHRC to enforce its recommendations and expand its jurisdiction to cover private entities, enabling it to address the multifaceted realities of human rights violations in contemporary India.

If these reforms are enacted with sincerity and urgency, the NHRC can reclaim its foundational ethos and emerge as a resilient institution, capable of standing firm against injustice regardless of the prevailing political winds. Failing to act, however, risks relegating the commission to a symbolic relic, unable to protect the very rights it was created to uphold.

(The writer is part of the organisations research team)

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Nothing ‘Right’ about India’s Human Rights Commission

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The post NHRC: Need for accountability to human rights & reforms in appointing members appeared first on SabrangIndia.

Understanding remand: CrPC section 167

Section 167 of CrPC empowers a Magistrate to remand an accused person to different forms of custody during the investigation process. It is invoked when the investigation cannot be completed within 24 hours of arrest. The provision aims to strike a balance between two competing interests:

• Protecting Individual Liberty: The provision ensures that an individual’s liberty is not unduly curtailed, and that detention is subject to judicial oversight.
• Facilitating Effective Investigation: This empowers the investigating agencies to gather evidence and interrogate the accused, ensuring a thorough investigation.

Sub-section (2) of Section 167 is particularly significant as it lays down the procedure for remand and sets a maximum limit of 15 days for police custody. The proviso to Section 167(2) further elaborates on this limit, allowing for judicial custody beyond 15 days and setting overall time limits for investigation (60 or 90 days, depending on the severity of the offense) after which the accused would or could be released on bail.

Evolution of judicial interpretation

The interpretation of Section 167(2) and its proviso has seen a shift over the years, shaped by significant judicial pronouncements:

• CBI vs. Kulkarni (1992): In this landmark case, the Supreme Court interpreted the proviso to Section 167(2) to mean that police custody was strictly limited to the first 15 days following the arrest.[1] This interpretation was aimed at safeguarding the accused from prolonged police detention, considered detrimental to individual liberty. This view was subsequently followed in Budh Singh v. State of Punjab (2000) — a three-judge bench order, solidifying the understanding that the 15 days of police custody had to be availed within the first 15 days of remand.[2]
• CBI vs Vikas Mishra (2023): The Supreme Court, acknowledging the practical challenges faced by investigating agencies, particularly in complex financial crimes, revisited the interpretation of Section 167(2) in this case. While the case dealt with the calculation of the 15-day period, the Court expressed the view that the earlier interpretation disallowing police custody beyond 15 days required reconsideration.[3]
• V. Senthil Balaji v. The State (2023): This case became pivotal in redefining the understanding of police custody under Section 167(2). The Supreme Court, while upholding the arrest and custody of the accused, interpreted the provision to allow for an aggregate of shorter custody periods spread across the entire investigation period (60 or 90 days). The Court reasoned that this interpretation was consistent with the provision’s language and its objective of balancing individual liberty with the need for effective investigation.[4] Justice Sundresh, authoring the judgment, emphasised:

“The period of 15 days being the maximum period would span from time to time with the total period of 60 or 90 days as the case may be. Any other interpretation would seriously impair the power of investigation. We may also hasten to add that the proviso merely reiterates the maximum period of 15 days, qua a custody in favour of the police while there is absolutely no mention of the first 15 days alone for the police custody.”

The Senthil Balaji judgment clarified that the 15 days of police custody need not be a continuous period and can be sought in shorter durations throughout the investigation, as long as the total does not exceed 15 days.

BNSS Section 187: The New Landscape

The Senthil Balaji judgement was delivered on August 7, 2023, and soon after, Union Home Minister Amit Shah introduced the three criminal law bills— Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS), Bharatiya Sakhshya Adhiniyam (BSA) as new Penal, Criminal Procedure and Evidence Laws respectively.

The introduction of BNSS to replace the CrPC brought a shift in the legislative approach towards police custody. Section 187 of BNSS, the corresponding provision to Section 167 of CrPC, retains the 15-day limit on police custody. However, it introduces a crucial change in its wording, allowing investigating agencies to seek this period “in the whole or in part over 60 or 40 days”. This phrasing does not explicitly restrict police custody to the initial 15 days, unlike the proviso (as was interpreted in Kulkarni) in Section 167(2) of CrPC. This change in the BNSS aligns with the two-judge bench’s reasoning in the Senthil Balaji Case.

This change has sparked a debate and serious concerns about potential misuse and its impact on individual liberties. The lack of clear guidelines in BNSS regarding the circumstances under which police custody can be sought beyond the initial 15 days has amplified these concerns. The bills were subsequently referred to the Department-related Parliamentary Standing Committee on Home Affairs for its examination and report.

Ignoring the suggestions of the Standing Committee

The Parliamentary Standing Committee on Home Affairs, while reviewing the BNSS Bill, recommended incorporating specific safeguards to address this ambiguity. In the report it had adopted on November 6, 2023, it recommended that a suitable amendment may be brought to provide greater clarity in the interpretation of Section 187.  This recommendation was based on the suggestions from stakeholders arguing that as a general rule, custody should be taken in first 15 days of remand and the further window should only be utilised as an exception, when the accused is trying to avoid police custody or due to extraneous circumstances which are not within the control of the investigating officer.

Essentially, the committee sought to strike a balance between the rights-based approach and the approach of giving investigating agencies the necessary time. However, these suggestions did not materialise in the bills that were re-introduced and later passed in the Lok Sabha in December 2023. The BNSS came into force in July 2024.

How does it matter if 15 days of police custody is in part or whole?

Under the old CrPC regime, police could only request custody during the first 15 days of an investigation. After that, the accused was either placed in judicial custody or granted bail.

Under the new BNSS regime, the police can request custody in parts. For instance, they may request a 4-day custody period, after which the accused could be granted bail. However, since the police still have 11 days of custody left, they can later request another 4-day custody, potentially a week after the accused is granted bail. This means the 15-day custody limit could be stretched across the first 40 or 60 days, depending on the severity of the offense.

This matters for three key reasons:

1. The accused may face harassment through repeated police custody requests, disrupting their ability to function in daily life while on bail.
2. Not merely harassment –police custody is often an axiom for custodial torture– and prolonged availability of remand to an already powerful (and often brutalised police force) is likely to make accused victims to this in greater intensity in future.
3. Judicial officers may hesitate to grant bail until the police have exhausted their full 15-day custody allowance. Why? Granting bail early could require a cumbersome process of cancelling bail and approving further custody requests from the police.
4. When the CrPC was enacted in 1973, technological resources were far less advanced than they are today. Even then, the custody limit was capped at 15 days during the initial investigation period, as interpreted in the Kulkarni Case. With modern advancements like CCTV, facial recognition, and advanced forensics, allowing police to use the same 15-day period in parts grants them disproportionately higher power.

Implications

Potential for misuse:

The lack of explicit safeguards in BNSS regarding police custody beyond 15 days raises concerns about potential misuse and prolonged detention without adequate justification. For instance, the police could request custody on the 15th day of investigation while the accused is in judicial custody for a few days. Under the old regime, the police were required to seek custody within the first 15 days, after which the accused could apply for bail. However, now the accused is more likely to remain in prolonged detention until the police exhaust their 15 days of custody, effectively delaying the opportunity for bail.

Additionally, the right to claim custody in parts grants the police more power than before. For example, consider a situation where person X is arrested on Day 1 and sent to police custody by the court for 5 days on Day 2. On Day 7, X is released on bail. Until Day 16, X cooperates with the police by attending investigation sessions daily while on bail. However, on Day 17, X, frustrated with the line of questioning, decides to stop going to the questioning sessions. Since the police still have 10 days of custody remaining, they could use it as leverage to harass X. This skewed power dynamic makes it challenging for the accused to exercise their liberty, even when cooperating with the investigation.

In D.K. Basu vs. State of West Bengal (1996), the Supreme Court emphasised that in custodial crimes, the real concern is not only the infliction of physical pain but also the mental agony endured within the four walls of a police station or lock-up.[5] The new provision in the BNSS, by enabling the police to claim custody repeatedly within the 40/60-day period—depending on the severity of the offence—contradicts the judicial philosophy outlined in D.K. Basu.

Judicial Oversight:

The role of the judiciary becomes even more critical in ensuring that this power is exercised judiciously and that the rights of the accused are protected. Magistrates must rigorously scrutinise the grounds for seeking police custody at each stage, ensuring it is genuinely necessary for the investigation and not used as a tool for harassment or coercion. However, whether judicial officers will exercise such prudence or remain reluctant due to the challenges mentioned above remains to be seen.

Higher judiciary’s role – past and future

Both CBI v. Vikas Mishra and Senthil Balaji v. State demonstrate a judicial inclination towards prioritising the needs of investigation over a strict interpretation of the 15-day custody limit enshrined in Section 167(2) CrPC. However, these judgments fall short of providing a nuanced approach that balances both perspectives. The intent behind the Kulkarni case’s limitation of police custody to the first 15 days was to ensure there was no room for police excess. Since then, police powers have grown stronger, yet rather than achieving a balance between police authority and individual liberty, the Supreme Court judgments in Vishal Misra and Senthil Balaji have adopted a unidimensional approach.

The judgments could have explored the possibility of resetting the 15-day clock in situations beyond the investigating officer’s control rather than calling for a re-examination of the general rule established in the Kulkarni case.

For instance, if an accused falls seriously ill during custody, necessitating hospitalization and thereby preventing effective interrogation, the court could have considered pausing the 15-day countdown and resuming it upon the accused’s recovery. This approach would balance the need for a thorough investigation with the accused’s right to health and a fair opportunity to respond to allegations.

Similarly, in situations like CBI v. Vikas Mishra, where the accused obtained interim bail, other legal challenges or procedural delays could hinder the investigating agency’s access to the accused within the initial 15-day period. The judgments could have acknowledged such scenarios and allowed for a recalibration of the 15-day limit to ensure the investigation is not unfairly prejudiced.

To address this lack of balance, the higher judiciary could develop jurisprudence that empowers and enables lower courts to scrutinize police custody petitions seeking custody in parts, while carefully considering the rights of the accused. Although this will take time, it will provide the necessary balance that the BNSS currently lacks in Section 187.

Conclusion

While the current BNSS makes the questions posed by the court in Senthil Balaji and Vishal Misra almost infructuous, it is a constant expectation from the Supreme Court to exercise caution in calling established judgments and rules into question, which, unfortunately, was not met in these orders.

In a recent case, Prem Prakash vs. Union of India (2024), a two-judge bench of the Supreme Court stated as follows[6]:

“The principle that ‘bail is the rule, and jail is the exception’ is only a paraphrasing of Article 21 of the Constitution of India, which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Liberty of the individual is always a rule, and deprivation is the exception. Deprivation can only be by the procedure established by law, which has to be a valid and reasonable procedure.”

While this judgment relates to a different factual matrix, its emphasis on deprivation being an exception underscores the need to balance the rights of investigating agencies and the liberty of the individual under Article 21.

On the other hand, the Criminal Procedure Code should not serve as a machinery for the state’s exercise of unbridled power. The government, too, could issue Standard Operating Procedures (SOPs) or even undertake an amendment to the BNSS to provide the necessary clarification and balance the power of the police. The amendments could range from specifying offences for which police custody in parts could be sought to defining situations in which police custody could be justified.

(The author is part of the organisations legal research team)

[1] (1992) 3 SCC 141 CBI vs. Kulkarni (1992)

[2] (2000) 9 SCC 266 Budh Singh v. State of Punjab (2000)

[3] 2023 SCC OnLine SC 377

[4] 2023 INSC 677

[5] (1997) 1 SCC 416, D.K. Basu vs. State of West Bengal (1996)

[6] 2024 INSC 637, Prem Prakash vs. Union of India (2024)

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Amend Sec 187(3) BNSS in line with Sec 167(2) CrPC: PUCL to HM and Law Minister

The post Police Custody: How the BNSS has tilted the balance of power in favour of the state appeared first on SabrangIndia.

This article tries to examine what one of the most pivotal international frameworks on climate change has achieved in the last 5 years. United Nations Framework Convention on Climate Change (UNFCCC)f is the parent treaty of the Paris Agreement with 198 parties i.e., a universal membership. It also is the parent treaty of Kyoto protocol-a treaty on reduction in emissions.

The Paris Agreement signed in 2015 is a legally binding international treaty on climate change with the main aim of holding the global average temperature increase to well below 2° C above pre-industrial levels and pursue efforts to limit the temperature increase to 1.5° C above pre-industrial levels. There are Nationally Determined Contributions under the agreement which the countries submit and are reviewed. The Conference of Parties (COP) is the supreme decision-making body of the convention and all state parties i.e., countries are represented here; it meets on a yearly basis.

The COP 29 climate meeting in Baku concluded in November 2024 with a disappointing deal on climate finance. Developed nations agreed to mobilize a “new collective quantified goal” (NCQG) of only $300 billion per year for developing nations by 2035. This was criticized by developing countries as a “paltry sum” since it represents only a three-times increase over their current mandate of $100 billion and falls significantly short of the estimated $1 trillion, or even $1.3 trillion, that developing countries need to effectively address climate change. Some even viewed it as a “betrayal” and a continuation of the trend of developed countries “taking apart the climate system” over the years. The 2022 Adaptation Gap Report had noted that the international adaptation finance flows to developing countries are five to ten times below estimated needs and will need over US $300 Billion per year by 2030.

Outcomes of the Last Five COPs

The last five COPs have each sought to advance the goals of the Paris Agreement, but they have met with varying levels of success:

COP 25, Madrid

COP 25 in Madrid (2019) focused on finalizing the “Katowice Rulebook,” the guidelines for implementing the Paris Agreement. However, countries failed to reach a consensus on critical issues like the rules for international carbon markets (Article 6). Despite the setbacks, COP25 made some progress on other issues. For example, it strengthened the Warsaw International Mechanism for Loss and Damage by establishing the Santiago Network to offer technical assistance to vulnerable developing countries. It also adopted an enhanced gender action plan to promote gender-responsive climate action and climate finance.

COP 26, Glasgow

COP 26 in Glasgow (2021) was considered a pivotal moment for raising climate ambition and finalizing the Paris Rulebook. It achieved several notable outcomes, including the Glasgow Climate Pact, which called for countries to revisit and strengthen their emission reduction targets and accelerate the phase-down of unabated coal power and the phase-out of inefficient fossil fuel subsidies. COP26 also finally completed the Paris Rulebook, including agreement on Article 6. Another key focus was adaptation. The Glasgow Pact called for doubling the amount of finance to support developing countries in adapting to climate impacts. COP26 also saw the launch of several significant initiatives, including the Global Methane Pledge and a pledge by over 100 countries to halt and reverse deforestation by 2030.

COP 27, Sharm El-Sheikh

COP 27 in Sharm El-Sheikh (2022) was dubbed the “implementation COP”. There was some progress on mitigation, adaptation, and finance, but many issues remained unresolved. A major breakthrough was the agreement to establish a fund to address loss and damage caused by climate change in developing countries. This was a long-standing demand from vulnerable nations and was widely seen as a significant step towards climate justice. However, the final agreement lacked strong commitments on phasing out all fossil fuels, including oil and gas. It also included weak language regarding “transitioning away from fossil fuels” that was at odds with the official global stocktake. COP27 also saw developed countries fail to deliver on their $100 billion per year climate finance pledge, which was due to be met by 2020.

COP 28, Dubai

COP 28 in Dubai (2023) was the biggest COP yet and marked the conclusion of the first ‘global stocktake’ of the world’s collective progress towards achieving the goals of the Paris Agreement. The key outcome of COP 28 was an agreement signalling the “beginning of the end” of the fossil fuel era. This agreement called for a transition away from fossil fuels in a just and equitable manner. It also called for tripling renewable energy capacity globally by 2030 and doubling the average annual rate of energy efficiency improvements over the same period. However, much of the language surrounding these commitments remained vague and non-binding. COP28 also made progress on operationalizing the Loss and Damage fund established at COP27. This fund will support developing nations experiencing the worst effects of climate change, like severe flooding and prolonged drought. COP28 also saw unprecedented recognition of the need to link efforts to address climate change with nature conservation. By the time COP 28 ended, the commitments to the Loss and Damage Fund totalled to US$ 661 Million.

COP, Baku

COP 29 in Baku (2024) focused on finance and aimed to set a new climate finance goal to replace the $100 billion goal set in 2009. The meeting ended with developed nations agreeing to mobilize a new NCQG of $300 billion per year for developing nations by 2035. While this trebled the previous goal, it was widely criticized as being inadequate to address the needs of developing countries, especially given that previous goals were not met. It was also criticized for offering “false hope” to vulnerable communities and nations and essentially “abandoning” them.

Unresolved Issues

Several critical issues remain unaddressed or inadequately dealt with during recent COPs. The most prominent of these is the continued insufficiency of climate finance. The financial commitments agreed upon at COP29 fall far short of what developing countries need to mitigate emissions, adapt to climate impacts, and address loss and damage. This funding gap undermines trust and hinders progress, leaving vulnerable communities and nations struggling to cope with the effects of climate change. The lack of a clear roadmap for achieving the new finance goal also raises concerns about accountability and implementation. Another unresolved issue is the ambiguity surrounding the phasing out of fossil fuels. While COP28 saw an agreement to “transition away from fossil fuels”, much of the language surrounding this agreement is vague and non-binding. The lack of a firm commitment to a rapid and complete phase-out of all fossil fuels, including oil and gas, remains a major concern. Finally, adaptation measures have not received the same level of attention and financial support as mitigation efforts, even though developing countries are facing increasingly severe climate impacts. This imbalance needs to be addressed to ensure a more comprehensive and equitable approach to climate action.

Challenges faced by developing countries

Developing countries are disproportionately vulnerable to climate change impacts, even though they have contributed the least to global greenhouse gas emissions. This is largely due to their geographic locations and limited financial and technological resources, which often make it difficult for them to adapt to climate impacts. As a result, developing countries rely heavily on financial support from developed countries to achieve their climate goals. These challenges are further exacerbated by the historical inequity of climate change. Developed countries have historically emitted the vast majority of greenhouse gases, contributing to the current climate crisis. This historical responsibility creates an ethical obligation for developed countries to provide financial and technological support to developing countries.

Balancing the scales and avoiding a Climate Black Swan

A “Climate Black Swan” event refers to a catastrophic and unpredictable climate-related event with severe global consequences. To avoid such an event, the international community must take urgent and ambitious action. This requires going beyond incremental steps and embracing transformative changes in our energy systems, economies, and lifestyles. It is essential to recognize that climate change is a global issue that requires a collective and coordinated response, one that prioritizes equity, justice, and the needs of the most vulnerable.

To address the imbalance between developed and developing countries and to effectively combat climate change, several actions are crucial. First and foremost, developed countries must fulfill their existing climate finance commitments and significantly scale up their financial support to developing countries. This includes providing grants and concessional loans for mitigation, adaptation, and loss and damage. Technology transfer and capacity-building are also essential. Developed countries should facilitate the transfer of clean technologies and provide capacity-building support to developing countries, empowering them to implement their climate plans and transition to sustainable development pathways. To ensure a just and equitable transition, the shift to a low-carbon economy must also consider the needs of workers and communities dependent on fossil fuels. This includes providing retraining opportunities, creating green jobs, and ensuring a fair distribution of the benefits and costs of the transition. Finally, all countries, especially major emitters, must set ambitious emission reduction targets aligned with the 1.5 degrees Celsius goal. This requires a rapid phase-out of all fossil fuels and a swift transition to renewable energy sources.

(The author is part of the legal research team)

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The post From Madrid to Baku: A chronicle of inadequate climate action at UN Conferences appeared first on SabrangIndia.