[Marital Rape] Counsel for both sides say they have received flak for their stand on the issue

Lawyers arguing on both sides of the marital rape case told the Delhi High Court on Friday that they have been receiving flak for their stand on the issue [RIT Foundation v Union of India]..Advocate J Sai Deepak, who is appearing for Men Welfare Trust (MWT), informed the Court that there has been some misreporting in the media as a result of which they have been receiving criticism. He made it clear that the organisation is not against recognition of spousal violence.Advocate Karuna Nundy added that she has been receiving rape threats because of her stand and there is no use dealing with these aspects. Therefore, the debate should be on points of law.“I have received rape threats which I am not talking about. So, let’s not even go there,” Nundy remarked.The Bench, on its part, said that by the time the hearing concludes, it would also be on the receiving end..MWT has opposed a batch of petitions demanding the criminalisation of marital rape. These petitions have challenged Exception 2 to Section 375 of the Indian Penal Code (IPC) which exempts husbands from being charged with rape if they establish sexual relations with their wives without consent.A Bench of Justices Rajiv Shakdher and C Hari Shankar has been hearing arguments in the matter..On Friday, Deepak argued on the limitations of the Court's powers of judicial review. Citing various Supreme Court and High Court judgments, he argued that when a law is framed or a statute promulgated, there is an assumption of constitutionality.“These judgments also show that only the legislature and the government have the power to deal with social experiments. They say that the Court must not seek an unnecessary confrontation with the legislature which consists of representatives democratically elected by the people. The judgment says that an act of the legislature is not to be declared void unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt,” he said.He argued that the doctrine of separation of powers is not there to protect the ilaka (jurisdictions) of each arm of the State, but to say that the people’s powers are not to be suppressed by judicial review."In our opinion, there is only one ground for declaring an act unconstitutional. It is that there can be no manner of doubt that this violates the Constitution. If there are differing opinions with one opinion saying it is constitutional and the other thinking it to be unconstitutional, then the former must prevail…If judicial aggression is to be the rule in policy, then some issues remain. How legitimate is the government by judges?” he asked..On the issue of Gujarat High Court also issuing notice in a similar petition challenging the constitutionality of Exception 2 to Section 375, Deepak submitted that this was symbolic of the larger malaise of the judiciary encroaching upon the domain of legislature.He said that the legislature dealing with the issue at a slow pace does not mean that the courts should intervene. Judges have to restrain themselves while exercising powers of judicial review and cannot direct Parliament to make particular kind of enactment, he added.It was also argued that courts have a limited role on the aspect of policy, where the judiciary must defer to the legislature and the executive. The Court has a much larger role to protect civil liberties and therefore it must protect the liberties of husbands by retaining the Exception under Section 375.“My point is that there is a provision that protects certain forms of civil liberty. It is being sought to be done away with which will enlarge the scope of existing offence,” he argued..Reference was also made to the Parliamentary Standing Committee and Law Commission reports to argue that the legislative intent on the provision was very clear. Deepak concluded that a Lakshman Rekha has to be drawn by the Court in light of the judgments cited that limit its powers to deal with the present issue..The Centre meanwhile reiterated its request to be granted more time to come up with its response. The Bench, however took, exception to the submission of Additional Solicitor General Chetan Sharma that there was no unseemly hurry about the case.Justice Shakdher said that the Court has taken out its judicial time to hear the matter on a daily basis.“Please do not say that. We have taken out judicial time. Please don't say there is no hurry. There is no point. You tell us when you want to start,” Justice Shakdher remarked..The Court will hear the matter on Monday, when Senior Advocate Colin Gonsalves and Advocate Karuna Nundy will make their rejoinder submissions for the petitioner..Marital Rape issue should be kept outside jurisdiction of court: J Sai Deepak to Delhi High Court.Here are the summaries of what happened at previous hearings:Day 1Day 2Day 3Day 4Day 5Day 6Day 7Day 8Day 9Day 10Day 11Day 12Day 13