CURRENT-AFFAIRS

Background

Since independence, "sexual intercourse on the false promise of marriage" was not directly defined under the Indian Penal Code (IPC), 1860. The judiciary relied on two primary sections to resolve such cases:

• IPC Section 375/376 (Rape): Used if the man obtained the woman's consent based on a 'misconception of fact.'
• IPC Section 90 (Validity of Consent): Provides that if consent is given under a misconception or fear, it is not 'free consent' in the eyes of the law.

Classifying such cases as 'rape' under the IPC not only complicated the judicial process but also created a social stigma for the accused and presented a severe challenge for the victim in providing evidence.

Bharatiya Nyaya Sanhita (BNS) and Section 69

The Bharatiya Nyaya Sanhita (BNS), 2023, effective from July 1, 2024, has filled this legal vacuum.

• Section 69: This section specifically penalizes sexual intercourse established by "promising to marry, promotion, employment, or by suppressing identity."
• Distinction: BNS has separated 'Rape' (Section 64) from 'Intercourse by Deceitful Means' (Section 69). This is an acknowledgement that where there is no use of force, the nature of the crime is 'fraud' (deceit).
• Penal Provision: It provides for imprisonment of up to 10 years and a fine.

Recent Judicial Discourse: Karnataka High Court Decision

The Karnataka High Court recently set a significant precedent while interpreting Section 69.

• Case: A married woman (mother of two children) accused a lawyer of sexual exploitation on the promise of marriage.
• Court's Reasoning: Justice M. Nagaprasanna clarified that "The statute punishes deceit, not disappointment." If the complainant herself is not in a legal position to marry (due to a subsisting marriage), the claim of consent based on a 'promise of marriage' is 'logically impossible.'
• Significance: The court warned that criminal proceedings should not be used as an 'engine of harassment' or a 'weapon of retaliation.'

Guiding Principles of the Supreme Court

The Apex Court has established certain standards in cases like Anurag Soni vs. State of Chhattisgarh and Sonu vs. State of Uttar Pradesh:

• Initial Mens Rea: The prosecution must prove that the accused had the intention to deceive from the very beginning of the relationship.
• Failure of Marriage vs. Deceit: If a marriage cannot take place due to social, familial, or other circumstances, it cannot be considered a criminal act.

Constitutional Rights and Human Dignity

• Article 21 (Protection of Life and Personal Liberty): This includes 'Life with Dignity' and the 'Right to Privacy.' False allegations cause irreparable damage to an individual's social reputation, which is a violation of Article 21.
• Article 14 (Equality): Impartial application of the law is mandatory. A lack of a gender-neutral approach and the misuse of laws hurt constitutional equality.

NCRB Report

According to the National Crime Records Bureau (NCRB), approximately 30% to 40% of rape cases registered in India are related to the 'promise of marriage.'

• Low Conviction Rate: The conviction rate in these cases is extremely low, indicating that most cases were either consensual or motivated by a sense of retaliation.

Micro-Analysis: 'Deceit' vs. 'Heartbreak'

Will this Weaken the Position of Women?

A serious question arises: will this decision make it difficult for women to obtain justice?

• Challenge: Proving 'intention' (Mens Rea) is difficult. This may cause genuine victims to struggle more to prove their case.
• Opportunity: It recognizes women as 'independent and discerning adults' (Agency), rather than just an 'object' that can be easily led astray. It challenges the patriarchal notion that a woman does not understand the consequences of her consent.

Way Forward

• Preliminary Inquiry: According to the guidelines of Lalita Kumari vs. State of UP, a thorough investigation prior to the FIR should be mandatory in such sensitive cases.
• Legal Literacy: Making youth aware of the legal implications of consent.
• Judicial Balance: Courts should examine the difference between 'free consent' and 'consent obtained by deceit' on a case-by-case basis through evidence (such as chat screenshots, witnesses, etc.).

Conclusion

The goal of BNS Section 69 is to provide protection to genuine victims, but its misuse gives rise to 'procedural injustice.' The decision of the Karnataka High Court is a necessary 'check and balance.' The justice system must ensure that it respects consent, punishes deceit, and discourages retaliation. Ultimately, the purpose of the law is not to impose 'social morality' but to ensure 'constitutional justice.'

Contemporary Context

A new discourse has emerged between the Indian Judiciary and the Legislature following the notice submitted by 107 Members of Parliament (INDIA bloc) in the Lok Sabha to Speaker Om Birla, seeking the removal of Madras High Court Judge, Justice G.R. Swaminathan.

Charges: The notice levels 13 serious allegations against the judge, primarily including:

• Acting against secular constitutional principles.
• Favoring advocates of a particular community.
• Violation of the Judicial Code of Conduct.

Constitutional Terminology: ‘Impeachment’ vs. ‘Removal’

In common parlance, the term ‘impeachment’ is often used for removing judges, but technically, the position in the Constitution is different:

• Impeachment: In the Indian Constitution, this term is used only for the procedure of removing the President under Article 61.
• Removal: The Constitution uses the term ‘Removal’ for judges.
• Articles: The procedure for removal is provided under Article 124(4) for Supreme Court judges and Article 217(1)(b) for High Court judges. Notably, according to Article 218, the procedure for removing a High Court judge shall be the same as that for a Supreme Court judge.

Step-by-Step Procedure for Removal of a Judge (Judges Enquiry Act, 1968)

Removing judges is one of the most difficult legal processes in India, designed to be complex to maintain the independence of the judiciary:

• Notice: A motion signed by at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha is submitted to the Speaker/Chairman.
• Discretion of the Speaker: The Speaker can accept or reject the motion (this is where the first 'loophole' for the failure of the process begins).
• Inquiry Committee: Upon acceptance, a 3-member committee (comprising an SC judge, a Chief Justice of an HC, and a distinguished jurist) investigates the charges.
• Parliamentary Voting: If the committee finds the judge guilty, the motion must be passed in both Houses of Parliament by a ‘Special Majority’ (a majority of the total membership of the House and a majority of not less than two-thirds of the members present and voting).
• President’s Order: Finally, the President issues the order for removal.

Legal Analysis

Despite the seriousness of the provisions, there are several hurdles in the process:

• Political Will: Securing a special majority is extremely difficult, especially in the era of coalition governments.
• Lack of Time: Parliament often lacks the time required for detailed discussions on such motions, which can leave the process hanging in the middle.
• Judicial Accountability vs. Independence: The process is so rigorous that to date, no judge in the history of India has been removed through this process (the cases of V. Ramaswami and Soumitra Sen are examples where the process could not be completed).

Dignified Life and the Credibility of the Judiciary

• Protection of the Constitution: If a judge is accused of acting "against secularism," it is a direct strike on the Basic Structure of the Constitution.
• Judicial Propriety: The removal process is not merely a punishment but a mechanism to maintain public confidence in the judiciary.

Constitutional Dignity and Citizens' Rights

• Article 21 and Impartial Justice: An impartial judiciary is an integral part of a dignified life for citizens. If a judge acts against constitutional principles (such as secularism), it is an assault on the judicial trust of the public.
• Rule of Law: The concept of the ‘Rule of Law’ remains secure only when judges consider themselves accountable to the law.

Way Forward

The Justice Swaminathan case has once again brought the issue of judicial accountability to the center stage.

• Need for Reform: Experts suggest that laws like the ‘Judicial Standards and Accountability Bill’ should be reconsidered to provide a middle path for punishments less severe than removal (such as a warning or withdrawal from work).

Conclusion

The independence of the judiciary is paramount, but it cannot be ‘unbridled.’ Constitutional balance will be maintained only when the conduct of judges is fully dedicated to their oath of the Constitution.