(This is a guest post by Rahul Bajaj, a final-year law student at the University of Nagpur)
On this blog, there has been a discussion of (see here and here) Justice Nariman’s recent judgment in the case of Hiral P. Harsora versus Kusum Narottamdas Harsora and Ors., in which Section 2(Q) of the Protection of Women from Domestic Violence Act of 2005 (“the Act”) was struck down as being violative of Article 14 of the Constitution. In his comment on this judgment, Gautam described the case as a “textbook application of Article 14 doctrine”, inasmuch as Justice Nariman found that the distinction that Section 2(q) created between adult male and female respondents and between adult and non-adult male respondents, was not founded upon an intelligible differentia and did not bear a rational nexus with the object of the statute.
However, I would submit that the judgment, far from being a textbook application of Article 14, marks a significant departure in how Indian constitutional Courts construe the reasonable classification doctrine and apply it to assess the constitutionality of any statute against the touchstone of Article 14. This assertion is based on the fact that the Court factored into its analysis, and I would argue gave prime significance to, factors that have no place in an Article 14 inquiry.
A clarification here would be in order. In the paragraphs that follow, I will only be critiquing one prong of the Court’s reasoning viz. reliance on the need for internal consistency in statutes as a ground to declare Section 2(q) unconstitutional. In other words, I believe that the Court’s holding that the classification created by Section 2(q) is unreasonable, given the object and overall scheme of the Act, cannot be faulted.
While no one can cavil at the approach outlined by the Court in para 10 for assessing the constitutionality of a statute against the touchstone of Article 14 viz. looking at the statement of objects, text of the preamble and the provisions of the statute as a whole, this judgment would not have warranted closer scrutiny if the Court had confined its inquiry to faithfully adhering to this approach. Instead of doing so, however, the Court seems to have been unduly influenced by the desire to ensure internal consistency and uniformity in statutes regulating the lives of women in different spheres.
This assertion is based on the Court’s statement in para 18 which deserves to be quoted in full:
“As has been rightly pointed out by Ms. Arora, even before the 2005 Act was brought into force on 26.10.2006, the Hindu Succession Act, 1956 was amended, by which Section 6 was amended, with effect from 9.9.2005, to make females coparceners of a joint Hindu family and so have a right by birth in the property of such joint family. This being the case, when a member of a joint Hindu family will now include a female coparcener as well, the restricted definition contained in Section 2(q) has necessarily to be given a relook, given that the definition of ‘shared household’ in Section 2(s) of the Act would include a household which may belong to a joint family of which the respondent is a member. The aggrieved person can therefore make, after 2006, her sister, for example, a respondent, if the Hindu Succession Act amendment is to be looked at. But such is not the case under Section 2(q) of the 2005 Act, as the main part of Section 2(q) continues to read “adult male person”, while Section 2(s) would include such female coparcener as a respondent, being a member of a joint family. This is one glaring anomaly which we have to address in the course of our judgment.”
As the above extract unequivocally indicates, after noting that the definition of ‘respondent’ under Section 2(q) needs a relook on account of the amendment of Section 6 of the Hindu Succession Act, the Court seamlessly arrogates to itself the task of rectifying what it characterizes as a glaring anomaly. I would submit that this line of reasoning suffers from two grave flaws.
First, while ensuring internal consistency in statutes that deal with related subjects is doubtless a desirable objective, it is submitted that it is not the task of a court, much less of a court adjudicating upon the constitutionality of a statutory provision in accordance with well settled principles, to regard the attainment of this object as a key consideration that ought to undergird its judgment.
Second, the Act was enacted on 13th September, 2005 and the amendment to the Hindu Succession Act, as the Court itself notes, came into force on 9.9.2005, thereby indicating that the latter preceded the former. This being the case, if the legislature did not think it fit to craft the definition of ‘respondent’ in the Act in such a way as to bring it in line with the amendment to the Hindu Succession Act, it is difficult to fathom how the Court could have tasked itself with this responsibility.
Further, in para 42 of the judgment, the Court takes note of the definition of ‘respondent’ in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which definition is not circumscribed by the words ‘adult male’. Justifying its reliance on this definition, the Court notes that it indicates that “Parliament itself has thought it reasonable to widen the scope of the expression “respondent” in the Act of 2013 so as to be in tune with the object sought to be achieved by such legislations.”
Far from fortifying the Court’s conclusion, I would submit that it reinforces the flaw in the Court’s reasoning. More specifically, since the Court acknowledges that the widened definition of ‘respondent’, statutorily engrafted in the 2013 Act, is reflective of a conscious decision by Parliament to bring female respondents within the ken of the Act, does it not logically follow that the exclusion of female relatives from the definition of ‘respondent’ in Section 2(q) of the Act is the outcome of a conscious decision taken by the Parliament? If that be so, it is difficult to fathom how the Court could have use the 2013 Act as the foundation for its conclusion that Section 2(q) is unconstitutional, considering that Parliament adopted two different interpretations of ‘respondent’ on the basis of the distinct purposes that the two laws were designed to serve.
In sum, while this judgment will undoubtedly bring in greater consistency in the statutory architecture regulating the lives of women in different spheres, it is submitted that this can be no reason to declare a statutory provision unconstitutional. To the extent that this judgment uses this justification for holding Section 2(q) unconstitutional, I would respectfully submit that it rests on an intellectually shaky foundation and is inconsistent with the well settled principles that should inform an Article 14 inquiry.
(PS: My thanks to Prof. Shirish Deshpande for helping me acquire a nuanced appreciation of the ideas embodied in this article.)