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OPEN COURT
Time to come out of colonial-era legal hangover
India still persists with laws repealed in England long ago
By K Raveendran
It is indeed shocking that a section of the Indian Penal Code allows a married man to present his wife to someone else without the need to get her consent and without inviting the law against adultery. This should have been a clear case of trafficking or promoting prostitution, but ironically it is being permitted in the name of protecting the institution of marriage!

We have heard about the secret week-end parties of Indian businessmen in Dubai, particularly those belonging to the Sindhi community, where the men are said to put their car keys, all fancy ones, on a table and mix them before the wives are asked to blindly pick one each by rotation. Whichever key a woman picks up, she is supposed to spend the rest of the night with the man to whom it belongs. It is a strictly closed group - there may be several ones though - so nothing goes out. The whole thing is shrouded in secrecy because the Dubai laws do not permit such debauchery. But as things transpire now, the practice is perfectly legal as per the Indian laws. The argument in favour of the practice may be that it allows controlled diversity, which is better than giving the men unlimited freedom to seek adventure outside the group. A known devil is any day better than an unknown she-devil!

This may be a perfect arrangement from the point of view of the men, but amounts to "treating wife as the husband's chattel" as Justice Indu Malhotra, constituting a constitutional bench headed by Chief Justice Dipak Misra and comprising RF Nariman, AM Khanwilkar and DY Chandrachud, observed while hearing a PIL calling for the law to be struck down as it was discriminatory to women. The bench called the law arbitrary, questioning the need for the wife to seek the husband's consent before she could have sex with another man. "As it says that sex with another's wife will not be offence if it's done with the consent or connivance of that woman's husband, is manifestly arbitrary," Justice Nariman pointed out. Only the husband of an adulterous wife can file a criminal complaint; women cannot.

The law is a Victorian-era hangover that India inherited from the British rulers. While Britain has changed many of these as they corresponded to the morality of a bygone era, India is still persisting with them. These include the question of de-criminalising homosexuality, in which the Supreme Court recently refused to intervene, leaving the matter to the discretion of Parliament as it is a highly sensitive issue for the conservative elements, including the saffron brigade, which considers it unnatural and against the tenets of religion. Britain had already scrapped the law in 1967 as a new wave of thinking overtook the whole of Europe. The Supreme Court had in 2013 upheld criminality in this matter, but in more recent times favoured a second look and referred it back to the Legislature.

Narendra Modi had promised during his campaign in the run-up to the 2014 elections that if BJP was voted to power, his government would repeal 10 obsolete laws for every new one that was being made. According to Law Minister Ravi Shankar Prasad, some 1,300 redundant Acts and statutes had been scrapped so far while over 1,800 were still awaiting repeal. There are hundreds of such laws which had expired long ago in terms of their applicability and relevance. For instance, a hundred year-old law reportedly stipulates a fare of 2 annas per passenger for a boat ride across Ganga, although the currency denomination itself had been abolished 60 years before Modi announced his own demonetisation plan. According to a compilation of such anachronistic rules, the Indian Motor Vehicles Act (1914) requires all prospective candidates applying to become motor vehicle inspectors in Andhra Pradesh 'to have well-brushed teeth'. Applicants with 'pigeon chests, knock-knees, flat feet and hammer toes' are deemed unsuitable for the job. Another one provided for a jail sentence for any adult male refusing to combat a locust attack in Delhi. The Treasure Trove Act of 1878 provides for the arrest of any person finding anything worth more than 10 rupees from the soil and failing to report it to a designated revenue officer.

But the Indian government has also retained some of the draconian colonial era rules on purpose. The 1885 India Post Office Act that permitted the police and intelligence organisations to monitor all mail because the colonial government wanted to keep an eye on suspected subversive activity by the natives. Governments in Independent India have also used the Act for broadly the same intrusive purposes. With snail mail giving way to newer ways of communication, the Modi government itself has been building on such capability with the intention of keeping close watch on the online activities of the citizens.

In fact, only the other day the Centre informed the Supreme Court that it was dropping a

proposed move to set up a 'Social Media Communication Hub' to monitor the buzz over social media, raising serious fears about a 'surveillance state' being established. The details in the tender document floated in this connection had given away the government's real intentions. A raging public storm over the draconian move forced the government to beat a retreat. But there is no guarantee that it may not stage a comeback in some form or the other.

--(IPA Service)


News Updated at : Monday, August 6, 2018
 
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