17 March 2023

DAILY QUESTIONS & MODEL ANSWERS

Q1. The majority of Americans’ lives have unquestionably been greatly improved by judicial activism, notwithstanding the criticism that it has received. Provide specific examples to illustrate. (250 words)

 Paper & Topic: GS II –  Judiciary related topics

 Model Answer:

Introduction:

• To protect their independence in carrying out their respective roles, the legislative and judicial branches’ boundaries have been precisely specified by the Constitution. Articles 121 and 211 bar the legislature from discussing any judge’s conduct while carrying out his or her duties, whereas Articles 122 and 212 prohibit the courts from casting judgement on the legislature’s internal deliberations. Recent criticism of judicial activism has been levelled at what opponents have called its adventurism and overreach.

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The absence of legislation necessitates legal action:

• Supports constitutional morality: In The Naz Foundation Case, a key case that inventively applied this concept, homosexuality was decriminalised by invalidating Section 377 of the Indian Penal Code.
• In our system of things, constitutional morality must prevail above the argument of public morality, even if it is the majority view, according to the Delhi High Court.
• executive incompetence Political perseverance: Contrary to commonly held religious beliefs, Judge Chandrachud ruled in the Sabarimala case that women should be allowed entry into the Sabarimala temple.
• Because of fear for their voter bases, political parties and governments refrained from criticising or removing discriminatory laws.
• Triple talaq was prohibited in 2017 to safeguard fundamental rights because it violated the rights of Muslim women under the constitution. This legislation would not have been adopted if it had come from the executive branch or the legislative branch.
• The right to privacy likewise became a basic right with the passage of Article 21.
• Most trustworthy organisation: 80 percent of Indians believe in the Supreme Court, according to a People’s Survey of India report. While not being an elected body, the highest court is crucial for upholding the law.
• For instance, until Parliament approved a legislation on the subject, the Whistle Blowers Act was granted under Article 142.

Advantages of judicial activism:

• Unelected body: As an unelected body, the court is not influenced by the “General Will” of the people. Judicial restraint is more suited for such a structure than top-down legislating. For instance, attempts to circumvent a law prohibiting the selling of alcohol on public highways were greeted with criticism.
• The judiciary lacks the expertise and time required to pass laws. The effects of these rules in the actual world are occasionally unknown to the courts.
• For instance, it is necessary to repeatedly extend the April 2020 prohibition on BS-IV vehicles.
• Contrary to the Constitution’s mandate: Enacting law is not part of the Constitution’s fundamental structure, but judicial review is. Courts can review the validity of a law, but they don’t always make new ones.
• Politicians are still in some respects “accountable” to the public since they depend on it to keep them in office after five years.
• Judges who are not subject to any external supervision are only accountable to themselves.
• Jurisprudential exploration: Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which forbade giving anticipatory bail to people accused of breaking the Act, was declared unconstitutional by the court in Subhash Kashinath Mahajan v. State of Maharashtra (2018).
• All sides expressed strong displeasure and criticism of this. The law that was passed to change this was finally upheld in court.

Conclusion:

• Each branch of our democracy has a certain function to do and is prohibited from taking on duties that belong to the other branches. Judiciary activism must stay within the confines of the legal system since it is the sole forum open to those who have been wronged by executive or administrative excesses. Hence, judicial legislation can only be enacted in the limited circumstances outlined above.

Q2. Our legal system is continually evolving to meet the demands and expectations of society. Since the problem is growing alarmingly rapidly, laws protecting victims of marital rape are necessary. Comment. (250 words)

 Paper & Topic: GS I –  Women Empowerment

 Model Answer:

Introduction:

• Having sex with one’s spouse without the other person’s consent is referred to as marital rape. Many nations now recognise it as rape, despite the fact that it was formerly routinely rejected as wrong or as a crime by law and society. India’s criminal code has undergone a number of revisions to help protect women. The fact that marital rape is not criminalised in India puts the fundamental rights and dignity of women at jeopardy.
• The “marital rape exception,” also known as Section 375 of the Indian Criminal Code, which exempts violent sexual activity between a man and his own wife from the crime of rape if the wife is older than 15 years old, is the subject of several lawsuits.

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Current situation:

• Despite the fact that more than 100 countries have already done so, just 36 of them, including India, have not yet criminalised marital rape.
• The Indian government should make marital rape a crime, according to a 2013 recommendation by the UN Committee on the Elimination of Discrimination Against Women (CEDAW).
• The same recommendation was made by the JS Verma committee, which was established following major protests over the gang rape case on December 16, 2012.
• A woman in India endures sexual assault every 16 minutes and abuse from her in-laws every 4 minutes, according to research done by the NCRB.
• According to a study using data from the National Family Health Survey (NFHS) 2015–16, the average Indian woman is 17 times more likely to face sexual assault from her husband than from other people, and it is estimated that 99.1% of sexual assault occurrences go unreported.

Marital rape is a violation of women’s rights under the law and the constitution:

• The patriarchal attitude that views women as the property of men after marriage, with no autonomy or control over their bodies, is still reflected in our nation’s rape laws.
• The same legal safeguards that the Indian constitution guarantees are not available to married women.
• Lawmakers struggle to see why a marriage shouldn’t be viewed as enabling a husband to brutally mistreat his wife without incurring any repercussions. Women who are married or single have control over their own bodies.
• The best example of “implied consent” is the Indian notion of marital rape.
• It is impossible for a man and a woman to be married if neither one of them has ever given their consent to sexual activity.
• According to the centre, criminalising marital rape would undermine the institution of marriage and provide harassers free access to husbands.
• It highlighted the SC’s and other HCs’ viewpoints on the rise in improper use of IPC Section 498A. (harassment of a married woman by her husband and in-laws).
• Similarly, the Indian Criminal Code, 1860 makes same point. The six descriptions that make up Section 375 collectively define the crime of rape. The phrase “Sexual intercourse or sexual activities by a man with his own wife, the wife not being under 15 years of age, are not rape” is one of the exceptions to this offence.
• Earlier, Section 375 (Exception) distinguished between consent granted by a married woman and an unmarried woman, as well as between married women who were under the age of 15 and those who were over the age of 15, when it came to consent. The Supreme Court correctly overturned this and increased the drinking age to 18.

In India, marital rape ought to be criminalised:

• The Supreme Court’s decision might only go so far in preventing the legalisation of marital rape.
• The legislative needs to remove Section 375 (Exception) of the IPC, acknowledge this legal problem, and include marital rape in the rape statutes.
• By removing this prohibition, women will have more protection from violent partners, be able to get the rehabilitative services they need after being raped in marriage, and be able to defend themselves from both domestic and sexual assault.
• Indian women should be treated equally and no one, not even a spouse, should be permitted to violate another person’s human rights.

Conclusion:

• No matter who perpetrated the crime or how old the victim was, it is still rape. When a woman is sexually raped by a stranger, all that is left of the horrific event is the recollection; likewise, when she is sexually assaulted by her husband, all that is left of the perpetrator. Even after 73 years of independence, the vast majority of the criminal laws we inherited from the British are still in effect. Nonetheless, English law has since changed, and as of 1991, rape in marriage is now illegal. Yet, no Indian government has up until this point demonstrated a strong determination to find a solution.