Day 3 of Arguments on 6th September 2017

On 06.09.2017, the third day of the hearing, Mr. Rana Mukherjee appearing for the Union of India presented his arguments before the Court hearing the challenge to Exception 2 to S. 375 of the IPCMr. Mukherjee’s arguments were three-fold. He relied primarily on Parliamentary Committee reports and Law Commission Reports to show that the question of Section 375 and Exception 2 to the extent of the 15-18 years anomaly has been considered repeatedly by Parliament and that there is a constructive thought process and conscious decision on their part to retain the classification.

Mr. Mukherjee commenced his arguments stating that the present litigation is not an adversarial one but an effort to harmonise the attempts at eliminating child marriage while protecting a certain class of people within these marriages from the harsh consequences of criminal prosecution. He further argued that it was for the parliament t rectify the anomaly created by Exception 2 to S. 375 of the IPC by raising the age specified therein to 18.

Mr. Mukherjee quoted excerpts from the 84th and 172nd Law Commission Reports as well as the 13th Parliamentary Report to trace a chain of thought that had been the reason for retaining the 15-18 years category in the IPC where married women were concerned. He contended that wherever there was a blatant violation of the constitutional provisions, the judiciary has struck down such legislation. However, where there was seen a coherent thought process behind a legislation, the judiciary has adopted a cautionary approach and the present case belonged to the latter category. The Bench, however, expressed concerns over using the reports of Law Commissions and Parliamentary Committees as external aids for statutory interpretation noting the limited extent of their reliability for the purpose. Mr. Mukherjee’s contention was the attempt was only to show that a thought process was present, even though the same may be flawed in trying to protect the “so called institution of marriage”.

Another argument made by Mr. Mukherjee was that the age limit of 15 years had been retained owing to societal needs and also on account of the State’s reluctance to interfere in marital life. However, the aforesaid arguments were not received well by the bench. Justice Lokur remarked that merely because a practice which is recognised to be a social evil is being practiced cannot be a legitimate reason for its continuance in perpetuity. Secondly, if the State deems it fit to legislate on the issue of domestic violence by way of the Protection of Women Against Domestic Violence Act, 2014, how would enacting laws on sexual violence within marriage be an excessive intrusion? If the offence were to be created today, under article 20, a prosecution would only lie in cases occurring after the day the offence is created and the argument for preservation of the institution of marriage may not hold.

Justice Deepak Gupta made a significant observation stating that Parliament being aware of the incapacity consent has fixed the age at 18. Therefore, even where consent has to be read in or implied, as in the case of marital relationships, the same must be informed consent. When 18 has been recognised by the Parliament as the age of consent, on what basis can an exception be carved out in the IPC?

Mr. Mukherjee’s concluding arguments relied on case law to submit that the rules of interpretation with regard to penal statues was to be strict, and while he personally agreed that the age of consent under Exception 2 must also be fixed at 18 to bring it in conformity with all other statutes, the recourse would be by way of Parliamentary action to the said effect.