[Marital Rape] Government cannot be indifferent to issues of public importance: Former ASG Aman Lekhi

Criticising the Central government's refusal to advance arguments in the marital rape case before the Delhi High Court, Senior Advocate and former Additional Solicitor General for India Aman Lekhi asserted that the government's stand in cases of public importance must be known.."The government cannot possibly be indifferent to issues of public importance, and the view of the government should be known and should be expressed with utmost clarity," he emphasised..The senior lawyer was speaking at a panel discussion organised by the Oxford and Cambridge Society of India, titled Has the bough broken or are we playing the Devil's Advocate?The other panelists were Senior Advocate Geeta Luthra and Advocate Chintan Chandrachud. The discussion was moderated by two members of the society's executive committee, Vishnupriya Rajgarhia and Arnav Narain.The discussion was centred around the Delhi High Court's split verdict on the constitutionality of Exception 2 to Section 375 of the Indian Penal Code, which provides that husbands having sex with their wives sans consent does not amount to rape..Lekhi also opined that in cases where the government refuses to take a stand, courts should come down heavily and make an example so that such an approach is not tolerated. "Because the courts are soft and in some ways look away, that's the reason why such incidents are very frequent.".Discussing the judgment, he remarked that the issue brought into very sharp focus the difference between the two judges. "Because both judges concede that marital rape is wrong. The difference is the method to deal with it, because one is conservative and the other is an activist. That is the perennial problem in law," the senior counsel opined. Lekhi pointed out that the placement of the Exception in the Indian Penal Code had nothing to do with offences relating to marriage or morals, but was to be seen as an offence to the body. "When dealing with offences to the body, you are dealing with a person, not an institution. Therefore, the reasoning of Justice Hari Shankar, while correct upto making the classification, falters in the rational nexus," he explained. .He also took exception to the concept of paternalism, traces of which he believed were present throughout Justice Hari Shankar's judgment. He expressed that in his view, the concept of paternalism was blatantly undemocratic and had no place in rational decision making. "It negates and nullifies the legal process, it assumes an authority in a body outside the law...It is that other than the victim, a third person knows better and can decide in a more appropriate way what the right course of action is.".He went on to underscore that whether a law would be abused or not was secondary; the first step was to make an emphatic declaration of what conduct is to be prohibited."The woman's autonomy cannot be, in any way, disregarded, and the right to say no has to be protected. It'll enforce some kind of order in the social milieu. It'll be an emphatic declaration of what conduct is to be prohibited. Yes, there'll be abuse, we'll deal with it! But let us first set the law right. We set the standards of behaviour, that is the purpose of a law.".Read more on what Senior Advocate Geeta Luthra and Advocate Chintan Chandrachud said here.