Delhi High Court's Justice Rajiv Shakdher and Justice C Hari Shankar: Spotlight

Spotlight is a series where we shine the, well, spotlight on lawyers, judges and legal experts who made news over the past week.

Almost three months after reserving its judgment in the batch of petitions seeking the criminalisation of marital rape, the Delhi High Court this week delivered a split verdict on the issue.

While Justice Rajiv Shakdher allowed the petitions and called for the Exception to Section 375 of the Indian Penal Code to be struck down, Justice C Hari Shankar ruled that the provision should remain on the statute books.

Their observations leading to their differing decisions were penned down in a 393-page judgment pronounced earlier this week.

Who are Justices Shakdher and Hari Shankar?

Justice Shakdher was born on October 19, 1962 and did his schooling at St. Columba's in Delhi. He attained his Bachelor’s degree (honours) in Commerce from Delhi University in 1984. He subsequently obtained his LL.B. degree from the Law Faculty, University of Delhi in 1987 and enrolled as an advocate on November 19, 1987.

The judge also holds a degree in chartered accountancy from the Institute of Chartered Accountants of India obtained in 1987.

He studied an advanced course of law at the Institute of Advanced Legal Studies from University of London in 1994 and was designated a Senior Advocate on December 8, 2005.

In 1995, he was appointed to represent the Central government for cases in the Delhi High Court and was put on the senior panel from 2004-2007. He was appointed in 2005 to the Centre's panel of lawyers in the Supreme Court as a counsel and then by the office of the Comptroller and Auditor General (CAG) before the Central Administrative Tribunal (CAT) from August 1, 2002 to July 31, 2003.

He was the Senior Standing Counsel of CAG in the Delhi High Court from August 1, 2006.

He was appointed as an additional judge of the Delhi High Court on April 11, 2008 and was confirmed as a permanent Judge on October 17, 2011.

He was transferred to the Madras High Court in 2016 where he served from April 11, 2016 before being transferred back to his parent High Court on January 15, 2018.

Born on May 4, 1968, Justice Hari Shankar was also schooled at St. Columba's School, and later attained a Bachelor’s in Science with honours in Chemistry from Kirori Mal College. He obtained a law degree from the Campus Law Centre, Delhi University in 1993.

The judge has appeared as an arguing and senior counsel before several judicial fora, including the Supreme Court and High Courts of various States.

He specialises in indirect taxes, along with allied subjects such as foreign exchange and service law. Justice Hari Shankar was on the panel of Special Counsel representing the Central government in the Supreme Court, besides being empaneled as a counsel in the Directorate General of Anti-Dumping. He regularly appeared on behalf of the Central Council for Research in Unani Medicine before CAT and before the Delhi High Court.

He was designated a Senior Advocate on August 20, 2014 by the Delhi High Court and became a permanent judge of the High Court on May 15, 2017.

Opinion of the Bar

Former Additional Solicitor General and Senior Advocate Pinky Anand shared,

“Justice Shakdher and I have worked together as lawyers. He is a courageous, forthright and dedicated lawyer and a judge. I have known Justice Hari Shankar for several years — a man of conviction and committed sense of justice.”

On the verdict, the Senior Advocate feels that though marriages are made in heaven, they are lived on earth, and sometimes could get sullied.

"Marital rape is an issue we have known about for as long as we have been alive. We never speak about it and it was always considered ‘personal business’ of a married couple. The truth is, when any abuse is taking place on a woman, it is never ‘personal business’ because the ramifications result in an impact on society,” she noted.

Former Additional Solicitor General of India and Senior Advocate Aman Lekhi argued that conjugal life was neither “a strip club”, a “massage parlour” or an “establishment of sexual entertainment” run by a husband to the detriment of decency and propriety of a woman besides depriving her of choice, respect and self-determination.

“Marriage is a celebration of equality not enslavement and rape is bare violence as gross and as criminal as any other form of bestiality. Law can and should make no exemption for wrongs and nothing would be more retrograde if it was so allowed to do. Sir Hale is no longer the lodestar of lawyers and judges; women not property and it’s time we change our attitudes and redefine our value system moving away from treatment of marriage as permanent consent for sex and reducing conjugal relationship to mere intercourse,” he pointed out.

Lekhi, however, called for shunning "vexatious" prosecution, emphasising that a careful screening of allegations was necessary, with the restraint in the invocation of the law in order to address the wrong and not magnify the aggrieved woman's injury.

In Senior Advocate Geeta Luthra's personal experience, both judges are extremely fair and open minded.

"The marital rape judgment in particular exhibits independent thought and the very fact that the the decision is split shows how much thought they have put into it. It’s a hallmark of an independent judiciary," she shared.

The judgment in Luthra's view gives rise to the question whether a woman has a right to bodily autonomy and only because she is married the right to allege or right to institute proceeding for the violence done to her doesn't exist.

"It is true that in the civil law there is a recourse, she has recourse to divorce, she has a recourse to the domestic violence act. The question is, if it is a penal offence and is considered the most heinous of offences for an unmarried woman then why for a married woman it's not a penal offence," she added.

The parliament, she suggested, will have a role in carving out a new law that balances the right of the accused and the survivor.

Why are they in the Spotlight?

This is the first time that the constitutional validity of the Exception in rape law concerning a man and his adult wife was scrutinised and adjudicated upon. For now, however, the existing law will prevail in the light of the split decision of the judges. An appeal before the Supreme Court is in the offing.

In the opinion of Justice Shakdher, a married woman's right to bring the offending husband to justice required to be recognised.

“This door needs to be unlocked; the rest can follow. As a society, we have remained somnolent for far too long. Deifying women has no meaning if they are not empowered," he said.

Therefore, the Exception providing protection to a husband was held violative of the Constitution’s Articles dealing with equality before law, discrimination, freedom of speech and expression, and life and personal liberty.

Interestingly, Justice Shakdher was not keen on leaving the matter in question open to the legislature, noting it was well within the Court’s purview.

"Shunning responsibility to decide what falls within the ken of the court and leaving it to the executive and/or the legislature, in my view, would constitute abandonment of the duty and the role which the Constitution has defined for the courts,” he said in his judgment.

Disagreeing with his brother judge, Justice Hari Shankar felt that parliament is empowered to legislate and frame a new law when it came to the contention of the petitioners that provisions in rape law did not cover a man raping his adult wife.

He, therefore, outlined,

“Equally, the parliament may also deem it appropriate to do away with the impugned exception. We, however, cannot do so, unless the impugned exception is constitutionally vulnerable. That, in my considered opinion, it is not.”

He pointed out the Exception treated sex and sexual acts within a surviving and subsisting marriage differently from sex and sexual acts between a man and woman who were unmarried.

Interestingly, any reliance on the 18th century doctrine of English Jurist Lord Matthew Hale on coverture (a married woman deemed to have an irrevocable consent to sexual acts with her husband) was completely irrelevant in the present scope of examination of the exception of the rape law.

“Exception does not say that husbands would be exempted, or excepted, from being prosecuted for rape; it says, rather, that, sexual acts between a husband and wife are not rape. The offence of rape, therefore, does not exist, where the man and woman are married,” Justice Shankar underscored.

Notable Judgments and Remarks

In January 2021, Justice Shakdher had underlined the media’s responsibility when it comes to reporting cases. He summarised his opinion by saying:

“In a case where journalists are put on trial, the principle that I have articulated becomes relevant. What journalists wish don't happen to themselves, they should ensure it doesn't happen to a common person who expects neutrality from the media when he is being tried by courts.”

A much-hyped development of 2020 was the controversy over the portrayal of celebrities of the Indian film fraternity in the media.

The judge put to rest a case brought to his court by 38 productions houses of Bollywood and ordered news channels to ensure that no defamatory content was either aired or uploaded on their social media handles.

At his farewell at the Madras High Court in 2018, the judge was praised for being extremely courteous and fair - an attribute that left everybody who appeared before him content with the proceedings.

Justice Hari Shankar took suo motu notice of people not wearing masks on a flight he was also traveling on in March 2021.

"It was only on repeated entreaties made (by me) to the offending passengers that they condescended to wear their masks properly," he said.

On one occasion, the judge deplored the ease with which a public figure’s reputation could be tarnished on social media. The case pertained to tweets of former journalist Saket Gokhale.

"In the age of social media, desecration of the reputation of a public figure has become child’s play.”

In a recent order, the judge opined that unwarranted and needless hypersensitivity is not expected of judicial officers, who are otherwise expected at all times to maintain composure and poise.

He made the comment while hearing a challenge to a judicial officer's order which imposed ₹5 lakh costs against a man for “misusing process of law” after having obtained an eviction order but not getting it executed.