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Marital Rape case: A test for judicial review of policy decisions

Rishabh Deshpande


This paper focuses on the separation of powers doctrine and its applicability in the context of marital rape in India. It discusses how this doctrine has been interpreted and applied by the Indian courts in various cases involving policy decisions and legislative enactments. It also examines the liability of the judiciary in protecting and enforcing the fundamental rights and constitutional values of women who suffer from marital rape. It argues that the doctrine does not bar the judiciary from striking down a law or creating a new offence. It further argues that the criminalisation of marital rape is not a matter of policy but a matter of law, bringing it under the purview of judicial review.

The Respondent’s arguments in the Marital rape case

In the Marital rape case, the Respondents submitted that if the judiciary were to strike down the second exception under §375 of the IPC, it would violate the ‘doctrine of separation of powers’.[1] A new offence would be created if the court were to strike the law, which would have a substantial social impact.[2] Changes to social and cultural mores of society can only be made by the legislature after consulting the stakeholders in the society.[3] Additionally, there are measures to prevent marital rape through other law provisions, be it the POSCO Act,[4] or other grounds under the Indian Penal Code itself.[5]

The judiciary cannot compel the legislative body to decide the result of a procedure. However, it can urge the legislative body to speed up the procedure of consultation and lawmaking if the legislative body considers it necessary.[6] Only the Supreme Court (‘SC’) can give an advisory opinion under Art. 143, if the president asks for it. The HCs cannot do this under Art. 226.[7] The courts cannot make an offence that has not been held before.[8] Thus, the legislature can only address grievances regarding inadequacy rather than the judiciary.[9]

Efficacy of the arguments based on the existing literature on judicial review of policy decisions

The literature on this discourse is presented in two forms: the discussion in the Indian Constitution and the doctrine of non-intervention.

1. The SC and the Constitution of India

The constitution needs to clearly demarcate the distribution of power among the various branches of the state, even though it acknowledges their existence.[10] The Parliament in India is limited to the written constitution, unlike the United Kingdom, where the parliament has supremacy.[11] Despite the Supreme Court’s decisions and actions, the constitution envisages the supremacy of the executive and not the judiciary.[12]  The Courts in India have extensive powers when it comes to judicial review.[13] Under Article 50 of the DPSP, the judiciary’s independence has been mentioned.[14]

In parliamentary assembly debates, it is clearly mentioned that there is a difference between the executive and the judiciary, that’s the only key difference since the majority of the legislature governs the country; hence, there is no differentiation between the legislature and the executive.[15] The court has held that there is a separation between the organs of the state and that the legislative is not the appropriate authority to determine the rights of individual parties and affect their rights.[16] The Court has also held that it is the supreme authority when it comes to interpreting the Constitution.[17]

Only it has the power to determine the boundaries of the influence exerted by the branches of the state.[18] The boundaries of judicial review vis-à-vis policy decisions have been set by the SC.[19] But this view was contrasted in subsequent judgements of the same court.[20] The court  held that it cannot interfere if the question to be resolved is whether the decision is erroneous or could be bettered.[21] The Constitution makers did not envisage an embargo on court’s powers to conduct judicial review and thus allowing it to exercise its powers to the complete extent.[22]

2. The Doctrine of Non-intervention

The position of non-intervention remands judicial review, policy decisions not being under the judiciary's purview.[23] Courts must refrain from overturning a policy decision of the legislature based on the same not being according to the standards or the manifestations of the court.[24] The court cannot intervene unless the act is shown to be arbitrary or against the constitution itself.[25]

The executive’s policy decisions are not subject to judicial review or scrutiny, nor can the courts offer advice or guidance on policy matters that fall within the executive’s authority.[26] There must be legality behind the questioning of policy.[27] The courts are not allowed to delve into matters beyond the scope of their authority and are in the domain of administrative power.[28]

However, when the policy results have a grave impact on society at large, then the courts can act as a catalyst for the change in the policy.[29] If a policy decision does not appear sound, it could be challenged before the court.[30] However, the court still does not become the forum to determine the legitimacy of the government’s decision.[31] Thus, the only ground under which the court may look into the substance of a policy is when it is in direct conflict with the constitution and other statutory laws.[32] The court is expected to be careful in determining the mannerism to satisfy the efficacy of the policy if the same is in question.[33] The court is expected to refrain from interfering in the legislative processes.[34]

A policy decision could be subjected to judicial scrutiny on the following grounds: (I) It violates the constitution; (II) it is against a statute; (III) the delegate is acting beyond the powers stipulated to him; (IV) if the policy is contrary to greater policies.[35]

The courts are expected to interfere in matters determining larger public interest.[36]

Is the test applicable in the present case scenario?

The case had a split verdict and is currently appealed to the Supreme Court.[37] Looking at the doctrine of non-intervention and the literature of judicial review on policy decisions it is clear that the court is not expected to interfere in the mechanism of making decisions, but is allowed to question the efficacy of law.[38] Presently, the argument purported by the respondent that if the court were to strike down this law, then a new offence would be created does not stand ground.

The court can delve into the validity of a law, whether it is constitutional or not. Moreover, the presence of an explicit provision of the law that infringes upon the rights of persons is not the questioning of policy decision. It is the ability to govern a law’s constitutional validity and, the court is empowered to do so under judicial review. Additionally, the argument that the court will create a new offence does not stand since by preventing recourse to this exception, there will be no exception for men. This, in turn, does not create a new offence; it simply removes a free pass for men wanting to violate the rights of women. Moreover, if the legislature felt otherwise after the striking down of the section, then they could enact laws for the same. Lastly, even if it is considered that a policy decision is being questioned, even then, the same comes under the ambit of judicial review. This is because the court can determine issues of grave public interest, and questions regarding the validity of the marital rape clause is worthy of this attention.[39] As a result, the dispute comes under the ambit of judicial review.


This paper analysed the separation of powers doctrine and its relevance to the issue of marital rape in India. It shows how this doctrine does not prevent the judiciary from reviewing the constitutional validity of any law or policy that is of public concern. It argues that the second exception under §375 of the IPC, which excludes marital rape from the definition of rape, is unconstitutional and unjust. It also argues that the court has the ability and the responsibility to strike down this exception and remove the immunity for men who commit rape within marriage. It further argues that the court can intervene in matters of public concern and social justice, even if they involve policy decisions, as it has done in several cases in the past.

[1] RIT Foundation v. Union of India, (2022) 3 HCC (Del) 572, ¶14

[2] Id.

[3] Id.

[4] The Protection of Children from sexually committed offences, 2012.

[5] The Indian Penal Code, 1860, §498A.

[6] RIT Foundation v. Union of India, (2022) 3 HCC (Del) 572, ¶14.

[7] Id.

[8] Independent Thought v. Union of India, (2017) 10 SCC 800, ¶190.

[9] RIT Foundation v. Union of India, (2022) 3 HCC (Del) 572, ¶14.

[10] Re Delhi Laws Act 1912 AIR 1951 SC 332 [285], ¶89.

[11] Id.

[12] State of Uttar Pradesh v. Jeet S Bisht (2007) 6 SCC 586, ¶49.

[13] Union of India v. Raghubir Singh (1989) 2 SCC 754, ¶7.

[14] The Constitution of India, 1950, Art. 50.

[15] Parliamentary Debates, vol 3 (Lok Sabha Secretariat 1955) 4990, 1955.

[16] State Bank’s Staff Union (Madras Circle) v. Union of India (2005) 7 SCC 584, ¶31.

[17] A.K. Kaul v. Union of India, 1995 (4) SCC 73, ¶12.

[18] State of Rajasthan v. Union of India, (1977) 3 SCC 592, ¶51.

[19] State of Kerala v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd., (1973) 2 SCC 713, ¶51.

[20] Council of Scientific and Industrial Research v. Ramesh Chandra Agrawal, (2009) 3 SCC 35, ¶33; State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, ¶66.

[21] Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737, ¶16; BALCO Employees' Union vs. Union of India, (2002) 2 SCC 333, ¶¶92, 98.

[22] P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578, ¶¶31, 34.

[23] State of Gujarat v. Arvind Kumar Tewari, (2012)9 S.C.C. 545, ¶12.

[24] Netai Bag v. State of W.B., (2000) 8 S.C.C. 262, ¶20.

[25] Federation of Railway Officers Association & Ors. v. Union of India, (2003) 4 SCC 289, ¶12; Brij Mohan Lal v. Union of India, (2012) 6 SCC 502.

[26] State of Kerala v. Naveena Prabhu, (2009) 3 SCC 649, ¶¶15-17.

[27] Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 S.C.C. 737, ¶16.

[28] Durga Das Basu, Administrative Law 962 (7th ed., 2019).

[29] Mohd. Abdul Kadir v. Director General of Police, Assam, (2009) 6 S.C.C. 611, ¶¶21-24.

[30] State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77, ¶66.

[31] Ekta Shakti Foundation v. Govt. of NCT of Delhi, (2006) 10 S.C.C. 337, ¶¶12, 16.

[32] Tata Iron & Steel Co. Ltd. v. Union of India, (1996) 9 S.C.C. 709, ¶68.

[33] Wade & Forsyth, Administrative Law 320 (10th edn).

[34] BALCO Employees Union v. Union of India, (2002)2 S.C.C. 333, ¶¶92, 98.

[35] Delhi Development Authority v. Joint Action Committee, Allottee of SFS Flats (2008) 2 SCC 672, ¶¶66, 87.

[36] Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1, ¶¶99-100.

[37] RIT Foundation v. Union of India, (2022) 3 HCC (Del) 572, ¶672.

[38] The Constitution of India, 1950, Art. 12, Art. 13(2).

[39] Mohd. Abdul Kadir v. Director General of Police, Assam, (2009) 6 S.C.C. 611, ¶¶21-24.

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