Analysing the Delhi High Court’s Approach Towards Presumption of Constitutionality in Marital Rape Case RIT Foundation v. Union of India: A case comment

Introduction

A Division Bench of the Delhi High Court, in its judgment in the marital rape case¹ regarding the validity of marital rape exception (MRE) in Exception 2 to Section 375 IPC, 1860², delivered a split verdict³ with both the Judges on the Bench rendering different opinions. An appeal against the judgment has been filed and listed before the Supreme Court. While the judgment is being heavily debated upon for the contrasting views relating to marital rape expressed therein by the 2 Judges comprising the Bench, it also goes a step ahead in interpreting the theory of judicial review in the context of the application of presumption of constitutionality specifically in relation to pre-constitutional laws.

One of the primary questions of judicial process which this article would address is the standard of review applied by the Delhi High Court in the impugned judgment. The constitutional courts in India have relied on the presumption of constitutionality as a principle. Presumption of constitutionality guides the constitutional courts in the exercise of their power of judicial review and connotes that every law enacted by the legislature is presumed to be constitutional unless shown otherwise and the burden of proof is upon them who contend that the particular law is invalid/unconstitutional or violates the fundamental rights. The reason behind the same is the judicial deference to the wisdom of the legislature in enacting the laws after understanding the will and the needs of the people, as a natural corollary to the doctrine of separation of powers.

The theory was first propounded by the US Supreme Court in O’Gorman & Young Inc. v. Hartford Fire Insurance Co. Same⁴, and has been applied by the Indian courts equally while deciding the constitutionality of the legislations.⁵ In the USA, the presumption is not attached with the same rigour in every case and the US Supreme Court (SCOTUS) applies different levels of judicial scrutiny depending on the subject-matter to be reviewed. Thus, the requirement of presumption is relieved, and the level of judicial scrutiny is heightened depending on the nature of the rights involved. The purport of withering away the presumption is to shift the burden of proof on the State to convince the court regarding the validity of the particular law. Although in India, the presumption is equally applied to every law which falls for judicial scrutiny, there has been a growing body of jurisprudence that the presumption ought not to be applied with equal force to some statutory instruments by the virtue of them not being enacted by the legislature and thus, lacking the very ground for the presumption. It has been argued that the presumption need not be attached to executive instruments like Ordinances and subordinate legislations, and they ought to be put to higher levels of scrutiny as they do not fulfil the requirement of parliamentary scrutiny.⁶ This argument was acknowledged by the Supreme Court of India, in its judgment in Jigya Yadav.⁷ Similarly, the Supreme Court in Navtej Singh Johar v. Union of India⁸ has held that the presumption of constitutionality is not attached to the pre-constitutional laws like IPC as they were enacted by a foreign legislature and thus, none of the parameters for attaching the presumption obtain. However, the presumption principle was rejected by Shakdher, J. for heightened scrutiny in this case.

Application of heightened scrutiny by Shakdher, J.

The issue regarding the applicability of the presumption to the impugned provisions⁹ arose before the Delhi High Court during the marital rape case hearing. It was the contention of the intervenors (against striking down of MRE) before the court that the presumption does apply to pre-constitutional laws as well and the judgment of the Supreme Court in Navtej Singh case¹⁰ in this respect is per incuriam. Whereas the petitioners and one of the amici contended that the presumption does not apply and the Court ought to strictly scrutinise the law especially when the subject-matter involved civil liberties/human rights, placing reliance on the judgment of the Supreme Court in Anuj Garg v. Hotel Assn. of India¹¹. The issue was mainly dealt with by Rajiv Shakdher, J. in his judgment and thus, reference to the judgment hereinafter implies His Lordship’s opinion.

A close reading of the judgment clearly shows that although, it was the course of the Bench to presume the constitutionality while deciding (for argument’s sake), in effect the presumption was done away with, and the provisions were put to a heightened level of judicial scrutiny. Firstly, the Bench, relying upon the Supreme Court’s judgment in R.K. Garg v. Union of India¹², did away the judicial self-restraint by stating that the issue involved infraction of fundamental rights in the context of violation of civil rights/human rights and thus, the self-restraint as adopted in cases involving economic policy could not be applied. The Courts have been “shunning responsibility” in such matters, the Bench stated. Secondly, the Bench rejected the reasonable classification test as inadequate to decide the violation of Article 14¹³ as it gives precedence to form over substance. The Bench sought assistance from the judgment of D.Y. Chandrachud, J. in Navtej Singh Johar case¹⁴, and few other judgments of the Supreme Court¹⁵ to apply the “causal connection” test while deciding on the violation of Article 14. The causal connection test was explained by the Bench in the following words:¹⁶

237. Therefore, the Court should eschew the proclivity of over-emphasising the test of classification if Article 14 is to be applied with full vigour; which postulates affording equal protection of the laws to persons who are placed in similar and like circumstances. While doing so, the court should examine closely how the impugned statute/provision operates on the ground i.e. what is its real effect and impact on the persons who come within the sway of the statute/impugned provision. In doing so, the court should disregard remote and indirect consequences that may entail by virtue of the impugned statute/provision. (emphasis supplied)

Applying the said test, the Court held that the law does not apply even-handedly for women who are similarly circumstanced and is bad in law as it violates Article 14 of the Constitution. Thus, it is clear that the Bench did away with the reasonable classification test to adopt a higher level of scrutiny and the rationale behind it was the nature of the rights being infringed by the impugned provisions. This was once again reflected in Shakdher, J.’s opinion in para 189 where His Lordship cited the Supreme Court’s judgment in Govt. of A.P. v. P. Laxmi Devi¹⁷, to state that Judges should be activists in defending civil liberties and fundamental rights of the citizens, unlike economic statutes where Judges should practise great restraint.

This approach of the Court draws a close parallel with the judicial review as practised by the US Supreme Court. As stated earlier, the practice as adopted by the SCOTUS is to apply different levels of judicial scrutiny depending upon the nature of the rights involved.¹⁸ For instance, the courts there resort to the strict scrutiny test of judicial review where free speech rights under the First Amendment are involved. The strict scrutiny test requires the State to satisfy the court that the law is “narrowly tailored” to promote a “compelling interest”¹⁹ and no presumption of validity is attached to the impugned statute.²⁰ The rational basis review (similar to reasonable classification test in India), which is considered as a weakly protective test, is applied to “abstract constitutional rights” under due process clause and equal protection clauses to legislation that neither classifies on a “suspect” basis nor implicates a “fundamental” right.²¹ Apart from these tests, SCOTUS has evolved several intermediate scrutiny tests as a quasi-generic response for a wide spectrum of cases usually involving Second Amendment rights.²² The essential requirement before invoking any of these tests is to identify at threshold, ex facie, the nature of the “triggering right” infringed and thereafter, applying the suitable test for its scrutiny. Shakdher, J.’s judgment adopted a similar course by conducting a threshold inquiry into the nature of the fundamental rights involved and suitably scaling up the level of judicial review from the weak test of reasonable classification, without acceding to the judicial deference and thus, in effect, doing away with the presumption of constitutionality. The test as applied cannot be equated to the strict scrutiny test as applied by SCOTUS, it certainly is similar to the intermediate scrutiny as mentioned above.

Principles of stare decisis and per incuriam

The application of the heightened scrutiny by Shakdher, J. is welcome but it has been done without giving due consideration to the judicial standards to be applied by the High Courts while following the judgments of the Supreme Court. This case posed a special situation where two different Benches of the Supreme Court of equal strength had rendered separate opinions on the issue of application of presumption of constitutionality to pre-constitutional laws. In Charanjit Lal Chowdhury v. Union of India²³, a 5-Judge Bench of the Supreme Court while dealing with the constitutional validity of Sholapur Spinning and Weaving Company (Emergency Provisions Act), 1950, which was enacted prior to the coming into force of the Constitution of India stated that the presumption is always in favour of the constitutionality of an enactment and the burden upon him who attacks it to show that there has been a clear transgression of the constitutional principles. Since the law in question in that case was itself pre-constitutional, it is clear that it was the intention of the Bench to apply the presumption to all laws with equal force. The dictum of Charanjit²⁴, was followed by another 5-Judge Bench of the Supreme Court in State of Bombay v. F.N. Balsara²⁵, which also dealt with pre-constitutional law. In Navtej Singh Johar case²⁶, again, the provision in question was pre-constitutional (Section 377 of the Penal Code, 1860²⁷) wherein Nariman, J. stated that the presumption does not attach to pre-constitutional laws because of being enacted by a foreign legislature, thus, overruling the principles laid down in Charanjit²⁸ and Balsara²⁹, without even making a reference to them. This raises two concerns — firstly, that a judgment of the same court rendered by an earlier Bench cannot be overruled by a Bench of co-equal strength and can only be done by a larger Bench; secondly, that a judgment rendered in ignorance of the earlier judgment of equal or larger Bench on the same subject is per incuriam. In the marital rape judgment³⁰, this contention was also put forth by the intervenors but was not fully addressed by Shakdher, J. in his judgment. His Lordships straightaway considered himself bound by the pronouncement in Navtej³¹, stating this it is not within the precincts of the jurisdiction of the High Court to hold a judgment of the Supreme Court as per incuriam, without holding any discussion on the principles enumerated in Charanjit³² and Balsara³³. Rather, His Lordships sought assistance from the judgment of the Supreme Court in Shri Ram Krishna Dalmia v. S.R. Tendolkar³⁴, which in fact did not deal with a pre-constitutional enactment. It is well established that in such a situation, the High Court is not necessarily bound to follow the latter judgment but must follow the one which in its view is better in point of time.³⁵ Thus, although Shakdher, J. in his judgment assumed (for argument’s sake) that the presumption of constitutionality is attached to Section 377, in effect the provision was subjected to heightened scrutiny without any discussion on the issue of per incuriam, as raised by the intervenors.