Last week, a two-judge bench of the Supreme Court struck down Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 [“DV Act”], on the basis that it violated Article 14 of the Constitution. Section 2(q), which is part of the definitional clause of the DV Act, read:
“…”respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:
Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.”
To understand what, precisely was at issue, it is also important to set out the definitions of “aggrieved person” and “domestic relationship”. Section 2(a) defined an “aggrieved person” to mean “any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.” Section 2(f) defined domestic relationship as “a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.”
The effect of Section 2(q), therefore, was that insofar as a domestic relationship was concerned, an aggrieved woman could proceed only against male perpetrators of domestic violence. However, if the domestic relationship was a marriage or a relationship in the nature of a marriage, the aggrieved woman could file complaints against the relative of her husband/male partner. It is important to note that it is, by now, settled law, that under the proviso to Section 2(q), women could be respondents. Consequently, the distinction drawn by S. 2(q) was between marriages/relationships in the nature of marriage on the one hand, and other domestic relationships on the other. In the former case, female relatives of the husband/male partner could be made respondents, while in the latter, a respondent could only be an “adult male”.
The Supreme Court found that this distinction was irrational, arbitrary, and contrary to Article 14. For the most part, the judgment is a textbook application of Article 14 doctrine, and needs no comment. However, a couple of interesting issues do arise out of the judgment, which deserve to be examined.
The first is the issue of legislative purpose under Article 14. Relying upon Shashikant Laxman Kale vs Union of India and Harbilas Rai Bansal vs State of Punjab, Justice Nariman held that the Statement of Objects and Reasons and the Preamble of the DV Act must be examined to discern its purpose. Reading the two together, he found that the purpose of the Act was to “provide for effective protection of the rights of women who are victims of violence of any kind occurring within the family.” (emphasis his) (paragraph 16) In light of the wide definition of ‘domestic relationship’, which included members of both sexes (paragraph 18), the amendments to the Hindu Succession Act that now made women co-parceners in a joint family (paragraph 18), the gender-neutral definition of “domestic violence” under Section 3 of the DV Act (paragraph 19), and the fact that the remedies under the Act (such as protection and residence orders) could easily be defeated if “respondent” was limited to adult male persons (paragraph 20), he then held that the classification under S. 2(q) failed the rational relation test under Article 14. This was not just true for “male”, but for “adult” as well, since it was easy to envisage 16 and 17- year olds engaging in acts of domestic violence within shared households (paragraph 24). The linchpin of Justice Nariman’s opinion, which he repeated, was that “the classification of “adult male person” clearly subverts the doctrine of equality, by restricting the reach of a social beneficial statute meant to protect women against all forms of domestic violence.” (paragraph 31) The phrase “domestic violence of any kind” was repeated in paragraph 36.
In short, therefore, the Court struck down S. 2(q) on the basis that the distinction it drew between the persons who could be arraigned as respondents in the case of marital relationships, and other kinds of domestic relationships, bore no rational relation with the purpose of the Act, which was to protect women against domestic violence of “any kind”, or of “all forms”. This legislative purpose was drawn from its statement of objects and reasons and the Preamble.
It is important, however, to draw a conceptual distinction between two kinds of “legislative purposes”. In the first sense, “legislative purpose” is what the legislature actually had in mind (to the extent that collective purposes make sense) when enacting the statute, something that a Court can determine by looking at the text and surrounding documents of the law. This is what Justice Nariman did in the present case. Call this the “intended purpose“. In the second sense, “legislative purpose” is a purpose that can be justifiable attributed to a statute, regardless of whether or not it was actually within the contemplation of the legislature while drafting the law. Call this the “justified purpose“. In this case, after having found that the stated purpose of the Act was to protect women against domestic violence of “all kinds”, and that the S. 2(q) classification did not serve this purpose, Justice Nariman did not ask (and indeed, the State did not propose) whether S. 2(q) could be plausibly justified in relation to any other possible legislative purpose. Here is one possible candidate:
“The Domestic Violence Act understands “domestic violence” as not simply violent acts committed by one person upon another within a domestic setting, but as a problem that flows from differential, structural power relations between men and woman in the family (which is why only women can be complainants under the Act), and therefore, primarily seeks to prevent male-on-female violence. While we may disagree with this framing, it is within the realm of legislative discretion to make this call. This accounts for S. 2(q). However, the legislature was also cognisant of the fact that the marital relationship is a space where women are specifically vulnerable, in no small part because in many circumstances they must leave their homes and live with their husband’s family. Consequently, the legislature chose to carve out a proviso to S. 2(q) to deal with the heightened vulnerability of women in marital relationships.”
I am not arguing that this restated purpose of the Domestic Violence Act would necessarily clear Article 14 scrutiny. It might be argued, for instance, that even if one is to accept the argument that domestic violence is structural and institutional, acts of domestic violence can and are committed by both men and women – and so, even if we were to take the above argument on its own terms, it would fail the test of rational classification (in that case, however, the Court would also have to explain why the legislature’s identification of the specific harm that it was seeking to prevent was irrational and could be overridden in a judicial enquiry). What I am arguing, however, is that principles of judicial deference and the presumption of constitutionality would require the Court to adopt a generous approach towards the determination of legislative purpose, which would include, at times, reconstructing legislative purpose in a manner that would make the strongest case for the constitutionality of the law. If, even then, the law failed Article 14 scrutiny, then of course, it would need to be struck down.
As an aside, it is also interesting to take note of the path that this judgment did not take. Recall that in Yusuf Abdul Aziz vs State of Bombay, the Supreme Court upheld the constitutionality of adultery law against a gender-equality challenge (women are not liable in case of adultery) on the basis that it was saved by Article 15(3) of the Constitution (“special provisions for women and children”). An argument could have been made in this case that exempting a class of women from legal liability was exactly what was done in Yusuf Abdul Aziz, and upheld under Article 15(3). The problems with that approach are too many to list out here, and so, it is certainly a good thing that the Court showed no signs of retracing its steps along that road.