आज हरेला दिवस पर आयोजित वृक्षारोपण कार्यक्रम में विधि सेवा एवं सामाजिक उत्थान समिति , आंगनबाड़ी कार्यकर्ता एवं धर्मपुर सुपरवाइजर श्रीमती रचना भट्ट जी , वार्ड ८१ रेसकोर्स के क्षेत्रीय जन एवं वार्ड के पूर्व पार्षद श्री गणेश बड़थ्वाल जी ने अपना अपना योगदान दिया ।
Blog Author- Ms. Upasana Borah, B.B.A LL.B.(Hons), N.E.F. Law College, Assam
According to Merriam Webster’s Dictionary of Law “Judicial Activism is the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent, or are independent of, or in opposition to supposed constitutional or legislation intent.”
The concept of judicial activism originated and evolved in USA. Arthur Schlesinger Jr. introduced this term in a Fortune magazine article in 1947. In that he actually characterized all the nine judges of Supreme Court into “judicial activists and champions of self-restraint”. According to him judicial activists believe that law and politics are inseparable and they see judicial results as result-oriented, as no result is foreordained.Thus in words of Learned Hand- “The words a judge must construe are empty vessels into which he can pour anything he will.”
Schlesinger explains for a champion of self-restrain law has fixed meaning, and deviation from those meaning is inappropriate and their violation, no matter which group may benefit from the departure. The connotation of judicial activism has evolved and its meaning has become increasingly unclear.
- JUDICIAL ACTIVISM IN INDIA
Renowned and eminent judges such as Justice V.R Krishna Iyer, Justice P.N Bhagwati, Justice O.P Chinnappa Reddy and Justice D.A Desai laid the foundation of judicial activism in mid-1970s. According to Justice K.G Balakrishan judicial activism is expansion of judicial review which has raised the popular profile of higher judiciary in India. Thus we can say that judicial activism is the proactive role played by the judiciary in order to protect the rights of citizens and promotion of justice.
We can say that judicial review has three meaning:
- To ensure fairness in administrative action ;
- To protect the fundamental rights ; and
- To rule on questions of legislative competence.
With passage of time judiciary felt that it has a vital role to play so that the basic structure (justice: social, economical and political) can be protected. Thus, the concept of judicial activism was introduced.
- PUBLIC INTEREST LITIGATION
Public Interest Litigation is actually derivative of judicial activism. It is strategic arm of judicial activism which intended to bring justice within the reach of poor masses, who constitute low visibility area of the humanity. PIL aims at the vindication of rule of law. It provides relaxation to the traditional provision of locus standi. In numerous cases, the court took suo moto cognizance of the matter involving abuse of prisoners, bounded laborers, neglected children etc.
- INDIAN COURTS EXPANDED THE MEANING OF RIGHTS
We should not forget that our constitution is a living entity, which grows with the society. And this growth of constitutionalism leads to liberal values, which ought to be protected. And this work has been granted to judiciary. It is very much evident from the act of judiciary that how it expanded the scope of Right to life and Personal Liberty which is incorporated under article 21 of our constitution. The courts need to go beyond its boundaries in order to enforce and protect these rights.
The judiciary is an unelected body. Thus, there is no accountability of judiciary by institutional mechanism. The judiciary cannot challenge parliamentary sovereignty.The primary function of judiciary is to resolve disputes.
India follows the notion of trias politica, which means there should be three organs of the state and these organs should maintain their power under certain mechanism. There is separation of powers and these organs need maintain cooperation and coordination.
In words of Dr. Manmohan Singh- “The line between judicial independence and judicial overreach is thin one. A takeover of function of other organ may become case of overreach.”
Several times the Supreme Court and High Courts of India were accused of this overreach. Despite the fact that there is independence of judiciary and it is also termed as watchdog (in order to check arbitrary power of the other organs) it cannot transgress its boundaries.
In India adversarial process of justice is followed. This is a common law tradition in which onus judge is like a passive mould. Thus, they have to remain neutral throughout the proceedings.
The judiciary transgresses its power to such an extent that it applies existing statutes to new factual situations and thus creates new laws.
While studying correlation between sociology and law, Roscoe Pound contended that law is an agent of social change and the professionals of this field are social engineers. The apex court of our country very well knows the limitation of judiciary and had stated and even warned the High Courts of their limitations. “Judicial activism must not become judicial adventurism; the Bench warned the courts adjudication must be done within the system of historically validated restraints and conscious minimization of judges’ preferences.” Even though framers of our constitution must have not thought of these innovations in judiciary, but there were far-sighted enough to incorporate the concept of constitutionalism.
In the 19th and 20th century colonial Assam (1826-1947) witnessed migration from various provinces of British India especially after the Yaboundo Treaty (signed on 24th February 1826). The liberal attitude of the Colonial arrival of peasants from Bengal to Assam in search of fertile lands.
After the independence the Assam state can be broadly divided in to 2 parts Brahmaputra Valley and Barack Valley in the Brahmaputra are Assami speaking people while on the other hand the in the Barak Valley the population speaks the Bengali.
Considering the seriousness of the matter on the influx of illegal migrants, the government of India went on to formulate the immigrants (expansion from Assam) act ,1950. This act which came in to effect from 1March 1950 mandated expansion of illegal immigrants from the state of Assam. To identify illegal immigrants, the national register of citizens was prepared for the first time in Assam during the conduct of 1951 census. It was carried out under a directive of the Ministry of Home Affairs by recording particulars of energy single person enumerated during the census. However, this measure against illegal migrants too suffered a major setback due to the fact that only from October 1952 onwards the regulations of passport and visa became operational between India and Pakistan. In 1965, the government of India collaborated with the government of Assam to expedite completion of the national register of citizens and to issue national identity cards on the basis of this register to Indian citizens in order to aid identification of illegal immigrants. But in 1996 the central government dropped the proposal to issue identity cards in consolations with the government of Assam, having found the project impracticable. Between 1948 and 1917, there were large scale migrants from Bangladesh (then East Pakistan) to Assam. The national register of citizens (NRC) is a register containing names of all genuine Indian citizens residing in India. The register was first prepared and its updating process was put into action after the 1951. The purpose of NRC update is to identify illegal migrants residing in north eastern state who entered Indian territories after midnight on 24/3/1971 and to determine the citizenship of the applicants who have applied tur inclusion of their names in the update NRC.
Difference between NRC and Citizenship amendment Bill 2016
Assam is in the throes of violence yet again over citizenship. In the past couple of days, life in the north-eastern state has come to a standstill as the BJP-led government at the Centre brought in an amendment that will, effectively, grant citizenship to migrants from Bangladesh. Citizenship has been the biggest pain point of Assam’s political and social life during the past several decades. The National Register of Citizens (NRC) kicked up a storm as over 3 million people were said to have been left out of the roster. The Citizenship Bill and NRC are not one and the same thing. Much of the discourse has been seen to have confused one with the other. Here, we take a look at the two and how they overlap.
Citizenship (Amendment) Bill, 2019
The Bill seeks to facilitate acquisition of citizenship by six identified minority communities namely Hindus, Sikhs, Jains, Buddhists, Christians and Parsis from Afghanistan, Pakistan and Bangladesh who came to India before December 31, 2014. Migrants from these communities were earlier given protection against legal action in the years 2015 & 2016 and long term visa provision was made for them. Citizenship will be given to them only after due scrutiny and recommendation of district authorities and the State Government. The minimum residency period for citizenship is being reduced from existing 12 years under the present law to 7 years. The law will not be confined to the state of Assam but will also provide relief to persecuted migrants who have come through western borders of the country to states like Gujarat, Rajasthan, Delhi, Madhya Pradesh. The beneficiaries of Citizenship Amendment Bill can reside in any state of the country and the burden of those persecuted migrants will be shared by the whole country. NRC is a roster of all those who settled in Assam up to the midnight of March 24, 1971. In 1978-79, several local leaders spotted a rapid increase in the number of Muslims in electoral rolls. A six yearlong agitation followed against illegal migrants from Bangladesh, which culminated with the signing of an agreement called the Assam Accord. The Assam Accord mandated that those who settled in the state after the cut-off date of March 24, 1971 would be weeded out and stripped of citizenship rights. Over the next few decades the NRC was remained stalled until the Supreme Court intervened. The apex court ordered the state government to update the NRC by a deadline and monitored its progress. Subsequently, the first draft of the roster was published on 30 July, 2018.
Bone of contention
The general sentiment in Assam with respect to the bill has been that it will defeat the purpose of the NRC.
The Sentinel, a leading local daily, noted in its editorial on January 5 what the Assamese people think of the citizenship bill: The perverse decision of the Centre to ram through the Citizenship (Amendment) Bill, 2016 against the wishes of the people of Assam will result in the migration +of millions of Bangladeshi Hindus to Assam.
NRC and Citizenship Act 1955 had been a burning issue in these days, the citizenship act defines the citizenship can be obtained by the birth, registration, descent, naturalisation, incorporation of territory. The government had passed proposals that Hindu, Sikhs, Buddhist, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan will not be treated as illegal migrants and they cannot be deported to their country. The shortens of the period residency from 12 to 7 years. The bill statics that such a long-draw process illegal immigrant from these six minority communities of the 3 nations “Many opportunities and advantages that may acquire only to the citizens of India, even though they are likely to stay in India permanently”.
The Assam people opposed the bill because it will change the demography of Assam the Shillong cabinet has opposed the bill. The issue is that are addressed in the bill that violates the basic tenets of the constitution. By distinguishing illegal immigrants on the basis of religion, the proposed law goes against the fundamental rights to equality under article 14. The protection of article 14 applies to both citizens and foreigners the bill would hamper what the Assam National Register of citizens sakes to achieve in the state, As the NRC does not distinguish on the basis of faith unlike to 2016 bill.
As the bill is a threat to the cultural and linguistic identity of the people of Assam. The bill passed a law and it would be challenged in the supreme court on the ground of Article 14 and as a more to disturb the NRC process.
But ultimately it was taken up at the behest of the Supreme Court of the India’s order following writ petitions by Assam Public Works. The Supreme Court in 2013 headed by the bench of Hon’ble Justice Rajan Gogoi and Justice Rohinton Poli Nariman, directed the Union Government and the State Government to complete the update of NRC to be implemented in adherence to Citizenship Act 1955 and the Citizenship Rules 2003 in all parts of Assam with the objection to rule out immigrants from the state. Pursuant to the direction of the Supreme Court, the Registrar General and census commissioner of India via its notification number 35 article dated December 2013 notified commencing of NRC. The Supreme Court there upon monitors the entire process of NRC update in Assam.
Marriage lies in the fact that it results in cause and effect of procreation, which is one of the vital and fundamental importance of it. It is a bond of trust, love, friendship which also provides moral and ethical support. It is not only about union of two persons, but also of two families. Marriage is also considered as socially accepted and respected institution of the society.
Now the question is- what an institution is and why marriage is considered as an institution? Institutions are established by way of doing things and comprises of a set of rules and regulations, which primarily focuses on maintaining social interaction and behaviour pattern. It also involves discipline and curbing human emotions and behaviour. Thus, it can be said that institution is established by the people and for the people. Marriage is called as an institution, which is sacrosanct and pious as it binds two people in a sacred bond of love, trust and friendship. And for this they have to go through various rituals and ceremonies, so that in the eyes of society they can be termed as husband and wife.
What if the person who is the life-partner, who should be the protector and should take care of the partner, defiles the body and the soul? The devil lurks in the shadow of her husband and the sacred bond of marriage becomes a necessary evil of the society.
We are not talking about some fantasy, this is the appalling and heinous crime of rape and when it is committed inside the bond of marriage it is called marital rape.
According to section 375 of Indian Penal Code, 1860:- “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—
● Against her will.
● Without her consent. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
● With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
● With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
● With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.”
Marital rape refers to any forceful and unwanted intercourse or penetration when the wife does not consent. But our society is not ready yet to recognize this term. As said by Sir Matthew Hale in 1678 “the husband cannot be guilty of rape committed by himself upon his wife, for their mutual matrimonial consent and contract the wife hath given up her in this kind onto her husband, which she cannot retract.” And our society is following this centuries old logic in 21st century. This exception is also given in section 375 of IPC.
“(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
But how can we forget that consent form the basis of this crime and how one could forget that there is thin line difference between consent and abstaining from resisting the sexual activity. Just because a woman becomes someone’s wife legally, that person has not obtained the right over her body and license to have sex with her without her consent.
Thus, the definition of rape in this patriarchal society is that it cannot be committed against a particular set of women; just in order that husband can fulfill his desire which is irrational and unethical. And in the case of State of Maharashtra v. Madhkar Narayan the Hon’ble Supreme Court held that “Every woman is entitled to her sexual privacy and it is not open for any and every person to violate her privacy as and whenever he wished.”
What are the reasons because of which our society deters from penalising this act? The institution of marriage is sacrosanct, delicate and pious and penalising it will break this bond. The interference by state will infringe the right to privacy and obligations of marriage. The wife will not differentiate between her husband and stranger. And the most epic one is that this law can be misused.
There is no need to protect such an institution in which a woman is stabbed, betrayed and injured by the person who was suppose to protect her and she is treated as a chattel or property. People are not aware of repercussions of this act. Worldwide studies reveals that the health problems caused by this act include HIV, other sexually transmitted diseases, vaginal bleeding, genital infection, chronic pelvic pain and so on. It also causes anxiety, depression, and emotional distress. Even the children health and up-bringing is also hampered by witnessing this violence.
This act also infringes many legal and constitutional provisions. Right to Equality of women is infringed. How could state deny equal protection of law for a particular set of women? In the case of Budhan Chodhary v. State of Bihar , the Hon’ble Supreme Court held that- “Any classification under art 14 is subject to reasonableness test that can be passed only if the classification has some rationale nexus to the objective the act seeks to achieve.”The exception (2) of sec 375, IPC did not fall under this category and hence it is invalid. Right to life and Personal liberty which includes right to privacy, dignity, even right to abstain from sexual intercourse and to be free from unwanted sexual activity. And section 498-A of IPC in this section cruelty has a wide definition which includes physical and mental cruelty.
Talking about international obligations, India is a member state in Convention on Elimination of All Forms of Discrimination against Women (CEDAW) which recommends that marital rape should be criminalized. Article 2(a) of Declaration on Elimination of Violence Against Women term marital rape as violence. And the state has also enacted The Protection of Women from Domestic Violence, 2005 when one act pertaining to conjugal rights did not infringe it, how could other act do so. There are various laws which protect a woman from strangers, but a woman is not only exploited by strangers, this should be engraved in our minds. And talking about misuse of law, every law can be misused, fearing this consequence laws should be not enacted. Many women in this country themselves are reluctant to complain because of various reasons such as their economic dependence on their husband, the future of their children and family, “log kya kahnege” due to societal so-called norms and values and most prominent one they are ignorant about their rights. These all provisions prima facie proves that marital rape is de facto not de jure in India.
Are there any other reasons for this hostile behaviour of a husband toward his wife? Is it correct to generalize all the husbands as devotees of patriarchal society? Like there is always an exception in inorganic formulas of chemistry, our country is also an exception in a general formula. In India a marriage not only bound two people in duties and responsibilities, but also their families. Thus, the people married have to fulfill all the expectations of the family members. Sometimes the husband and wife are so busy in fulfilling their expectations that they are not able to fulfill their partner’s need. And as stated by Sigmund Frend that physical affection and sexual compulsion are ids . Here we are not talking about bodily needs of husband. Maybe the needs of wife are not fulfilled due to various reasons such as lack of space in house, large family members etc. This may lead to irritation and frustration in them and they did not give consent for sexual activities.
In our country we also has the notion of “good news” which is generally asked by the people to newly married couples, within 6 months of their marriage. When a family consisting of 2 to 4 kids or even more, a wife and old parents are economically dependent on the male member . These socio-economic conditions are also responsible for this notion.
We cannot blame only husbands, as this patriarchal society has defined a man as invincible. And in order to meet that very definition they end up in trap.
Thus, this society acts as a vicious cycle not only for women, but also for men.
Inspite of all these notions we forget that a wife is now a separate legal entity. Many countries have enacted this provision, now it is time that India should also look forward for it. We know that India’s maturity and illiteracy did not permit it, but creating awareness and dissolving this false consciousness (which is there so that husband can fulfill their lust and desire) will be a good step.
1. Section 375 of Indian Penal Code, 1860 (herein referred as “IPC”)
2. Sir Matthew Hale quoted in Rosemarie Tong, Women, Sex and Law,94
3. AIR 1991 SC 207
4. Policy Brief, Marital Rape and its impacts: A policy Briefing for Kenyan Members of Parliament.
5. Article 14 of Constitution of India, 1950. This states that state shall not deny to any person equality before law and equal protection of law.
6. AIR 1955 SC 191
7. Article 21 of the Constitution of India, 1950. This states that no person shall be deprived of his life or personal liberty except according to procedure established by law.
8. Sec 498 of Indian Penal Code, 1860 is to protect married women from being subjected to cruelty by husband or his relatives.
9. Violence against women shall be understood to encompass, but not be limited to, the following: (a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation; (b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;(c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.
10. An Austrian Neurologist and founder of psychoanalysis.
11. basic compulsion and desires of human beings
12. Here it means the father of those children and who has to fulfill all the requirements of his family.