Altamash Kadir[1] & Soumya Mishra[2]

Abstract

The Rule of Law exists to create accountability in a Democracy and is created through the opinions and consent of the people living in the Democracy. Conceptually the two are easily to infer as mutually inclusive. However, the democratic form of governance inadvertently creates barriers to the creation or the optimum utilisation of the law. These barriers exist in the form of criteria that exists for the creation, the conflict that can exist or the understanding needed for the implementation. These barriers are exemplified by four examples. Firstly, the principle of Collective Dominance not being a part of Competition law in India. Secondly, surrogacy is not being regulated in India. Thirdly, marital Rape is still legal in India. Lastly, the abolishment of talaq-e-biddat has counter-intuitive implications on the status quo. The examples in isolation provide substantiation as to how these barriers operate and cumulatively provide substantiation as to how the democratic system of governance creates these barriers.

Keywords: lacuna, mechanism, discourse.

Introduction

Democracy is a form of governance in which the sovereign power resides in the whole body of a nation’s citizens.[3] The Rule of Law exists to be a mechanism that creates checks and balances in this form of governance by making all persons, institutions and entities (public and private, including the State itself), accountable to laws that are publicly promulgated, equally enforced and independently adjudicated.[4] The Rule of Law exists to determine the legitimacy of rules and decisions and to preside over the resolution of grievances and disputes.[5] Therefore, fundamentally, the Rule of Law exists to maintain transparency in the workings of the nation, when implemented into a democratic form of governance by creating accountability.

The formulation of law in democracies like India

The law is formulated when a need for the law arises and there exist no mechanism to provide recourse on the issue the law is needed for, therefore laws exist for fill in legal lacunas that preside. If a law exists for a situation for which there is a pre-existing recourse mechanism (law), it creates a conflict between the two. Fundamentally, the creation of the law would be meaningless, if there is no need for it and would be useless, if there were pre-existing laws to deal with the same situation.

Constitutional barriers to the creation of law

A Bill which is pending in the House of the People, or which having been passed by the House of the People is pending in the council of States, shall subject to the provisions of Article 108, lapse on a dissolution of the House of the People.[6]

In India, the primary function of parliament is to make laws and for this, a bill has to pass in both of the houses.[7] When the House of the People (LokSabha) dissolves, the bills in the house lapse.

The competition commission of India and collective dominance

No enterprise or group shall abuse its dominant position.[8]

Fundamentally, abuse of dominant position is prohibited under the Competition act, due to the implications it has on the enterprises that are not in the position of power. Abuse of dominant position stops these enterprises from growing and can force these enterprises to incur losses. However, as the market share an enterprise holds is an indicator of the dominance they possess,[9]in a situation where multiple enterprises assert their cumulative dominance into an enterprise without cartelising[10], the action is held to be legitimate.

Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States[11].

Treaty on the Functioning of the European Union creates a legal principle to act as recourse for the aforementioned situation called “Collective Dominance”.[12] However, although need for the same arose in multiple cases in India,[13] It was held to be out what Section 4 of the Indian Competition  Act entailed.[14]

In section 4 of the principal Act, in sub-section (1), after the words “or group”, the words “jointly or singly” shall be inserted.[15]

As the need for Collective Dominance was recognised, the Competition (Amendment) bill of 2012 was introduced in the LokSabha.[16] However, the bill lapsed due to dissolution of LokSabha,[17]depriving enterprises functioning in India of the right to feel secured in a situation where multiple larger enterprises chose to assert their Collective Dominance over them.

The ramifications of the aforementioned still exist on enterprises in India, like Reliance Jio tackling the entry barriers created by Bharti Airtel, Vodafone and Idea networks. Although, individually, these enterprises did not hold a dominant position in the market, cumulatively they held 60.91% of the market share.[18]As Reliance Jio could not claim that these enterprises held the dominant position collectively, cartelisation had to be argued and due to there being no agreement for cartelisation, Reliance Jio Lost.[19]

The regulation of surrogacy

India had legalised Surrogacy in 2002,[20] due to this India became a hub of surrogate mothers (similar to Thailand[21]). However, legal problems arise due to India being one of the very few nations having legalised Surrogacy.[22]Issues of the babies’ nationality,[23] the mother’s consent and exploitation came into play.[24] By 2008, the case of Baby Manjhi created discourse,[25]unparalleled in relation to the issue of Surrogacy. In this case, Baby Manji was born to a surrogate mother using a Japanese man’s through invitro fertilization.[26] Later, Japanese had a divorce. The husband still wanted to raise Manji, but his ex-wife did not.[27] As India requires that a surrogate child be legally adopted before leaving the country, but bars single men from adopting,[28] an NGO raised questions on legal propriety of Surrogacy and the child’s nationality.[29] The case created a need for regulation on the same.[30]

no person, other than a close relative of the intending couple, shall act as a surrogate mother and be permitted to undergo Surrogacy procedures as per the provisions of this Act.[31]

Although this bill exits to nullify the exploitation of Indians that are used to make India into a hub for Surrogacy, this bill is lacking in what is arguably the most crucial for the law to be fair, clarity. By never defining what a close relative is,[32] the ambiguity opens this bill up for scrutiny and delays its eventual rise as the law.[33] It is never stated how ‘close relative’ entails the proximity: geographically or intangible attachment or according to the family tree. This lacuna makes the bill perceivably variable and again, the law is meaningless, if it is not uniform in its application.

Recognition/criminalisation of marital rape

Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.[34]

A demand for the criminalisation of Marital Rape does exist in the Indian Discourse.[35] However, it is to be understood that there needs to exist an equilibrium between the minds of a nations citizens and the law. The need for a law is not simply a need for its existence, but a need for its implementation. The Indian society does not perceive for Marital Rape actually be rape.[36] The aforementioned is elucidated by the discourse surrounding and the awareness being spread regarding this issue being in relation to Marital Rape being an inherent evil and not as majorly about its criminalisation and its implications.[37]

Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and attempt to do so can only result in accentuating the difficulties of the present situations.[38]

Although the situations and the nations are different to Plessey v. Ferguson, the principle the argumentation by the board was based on remains the same. The legislation does not have the power to change the societal perception of a situation. However, the legislation has the power to legitimise the change in the societal perception after discourse and awareness create the aforementioned change.

Until every strata of the society recognises Marital Rape to be an inherent evil, the law cannot be used, even if created. The law is meaningless, if it is not uniform in its application and the said uniformity cannot exist unless the nation understands why the law exists.

Talaq-e-biddat

In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside.[39]

After the abolishment of talaq-e-biddat in the ShayaraBano case,[40] the government felt a need for a new law to regulate the aforementioned abolishment. A bill was put forth.[41] However, due to the bill not filling a lacuna and it being rushed due to societal pressure, the bill ended up being counter-intuitive instead.

Talaq-e-biddat used to be a method for divorce, before its abolishment. The abolishment in the Sharaya Bano case exists to connote the discontinuance of the method. The bill needed to further define the implications of the aforementioned abolishment.

“Any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”.[42]

In the aforementioned section[43], the bill reiterates the abolishment that existed through the SharayaBano case. In furtherance, it declares for the pronouncement to be a crime in the subsequent section[44]. What is problematic however (except the abolishment to also be considered criminalisation) is how this acts considers for the pronouncement to be divorce, while simultaneously existing to define how the pronouncement is not a valid method for divorce.

Without prejudice to the generality of the provisions contained in any other law for the time being in force, a married Muslim woman upon whom talaq is pronounced, shall be entitled to receive from her husband such amount of subsistence allowance for her and dependent children as may be determined by the Magistrate.[45]

The bill treats the pronouncement as divorce by discussing alimony for the woman, although it need not on three folds: Firstly, there is no need for alimony as no divorce has taken place in this situation. Secondly, there is no lacuna in Indian law in relation to obtaining alimony, if the pronouncement is considered divorce, as there is already a recourse mechanism in Indian law for that situation.[46] Thirdly, this puts the bill itself under major scrutiny, due to the vagueness of its wording.

Notwithstanding anything contained in any other law for the time being in force, a married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined.[47]

Unlike section 3, this section the bill considers the pronouncement as divorce with more clarity. It deals with the custody of the child after the pronouncement, as if the pronouncement is divorce. Again, there is no lacuna it must fill in that regard and again, it should not consider for the pronouncement to be divorce.

Conclusion

The Rule of Law exists to determine the legitimacy of rules and decisions, create transparent accountability in a Democracy. Conceptually, these are two mutually inclusive principles. However, as the implementation of the law depends on the people in a democratic nation, barriers are inadvertently created. Laws are created to fill out the legal lacunas, through the consent of the citizens, when there is an established and understood need for them. The reasoning behind the existence or the non-existence of these laws or the attempts at the creation of these laws may seem arbitrary. However, these factors are important for a Democracy to function. Although Collective Dominance is not accepted in India law is due to the LokSabha dissolving, the bill can be presented again in the future. It may have repercussions to the status quo, but the process of the law cannot be skimmed through. As the Rule of Law is not only a mechanism to create transparency and accountability in a Democracy, it is also a part of the system it creates the transparency and accountability. Although, the regulation in Surrogacy will be delayed, it is still better than having a law that is not complete. Although, it will take more years for Marital Rape to be criminalised, the people will be capable of understanding how to use to law. No justifications regarding the failure of Muslim Women (Protection of Rights on Marriage) Bill is necessary, as some laws do not need to exist. A Democracy is a finely tuned machine and the mechanism to tune it is the Rule of Law. To do this, the Rule of Law must remain in its most perfect form, capable.


[1] Student, Government Law College, Mumbai.

[2] Student, Government Law College, Mumbai.

[3] Black’s Law Dictionary (9th ed. Westlaw BLACKS, 2009).

[4] Guidance Note for Assessing Rule of Law in Public Administration by the United Nations Development Programme, 10.

[5] Ibid.

[6] INDIA CONST. art 107 cl. 5.

[7] Ibid.

[8] Competition Act 2002 Section 4(1).

[9] Competition Act 2002 Section 19(4) (a).

[10] Competition Act 2002 Section 3(3).

[11] Treaty on the Functioning of the European Union, Article 102.

[12] Ibid.

[13] Indian Sugar Mills Association v. Indian Jute Mills Association, Case No. 38/2011; Dish TV India Limited v. Hathway Cable &Datacom Limited, Case No. 78/2013; Fast Track Call Cab Pvt. Ltd. v. ANI Technologies Pvt. Ltd, Case No. 6 and 74/2015.

[14] Royal Energy Ltd. v. Indian Oil Corporation Ltd., MRTP Case No. 1/23.

[15] Competition (Amendment) Bill, 2012 Section 4.

[16] Government of India introduces Competition (Amendment) Bill, 2012, LEGALKNOWLEDGEPORTAL (November 27, 2019), https://legalknowledgeportal.com/2013/02/05/government-of-india-introduces-Competition -amendment-bill-2012/.

[17] Mr. Arjun v. Vaicom 18 and Onr., Case No. 57/2017.

[18] Counter Comments, TRAI’s Consultation Paper on Review of Regulatory Framework for Interconnection (21.10.16).

[19] Vodafone Mobile Services Limited v. the Competition Commission of India Writ Petition Nos. 8594 of 2017, 8596 of 2017, 7164 of 2017, 7172 of 2017, 7173 of 2017 with CAWST No. 17736 of 2017.

[20] Bindu Shajan Perappadan, A setback for surrogacy in India?,THE HINDU (November 27, 2011), https://www.thehindu.com/opinion/op-ed/a-setback-for-Surrogacy-in-india/article7927730.ece.

[21] Audrey Wilson, How Asia’s surrogate mothers became a cross-border business, SCMP (November 27, 2019), http://www.scmp.com/week-asia/society/article/2096675/how-asias-surrogate-mothers-became-cross-border-business.

[22]  Baby Manji Yamada v. Union of India &Anr. [2008] INSC 1656.

[23] Jan Balaz v. Anand Municipality and ors.

[24] Harmeet Shah Singh, Japanese girl born to Indian surrogate arrives home, CNN (November 27, 2019), http://edition.cnn.com/2008/WORLD/asiapcf/11/02/india.baby/index.html.

[25] Ibid.

[26] Supra Note 23.

[27] Marcy Darnovsky, Complications of Surrogacy: The case of baby Manjhi, GENETICSANDSOCIETY (November 27, 2019), https://www.geneticsandsociety.org/biopolitical-times/complications-Surrogacy-case-baby-manji.

[28] Guardians and Wards Act, 1890 Section 19.

[29] Supra Note 23.

[30] Dhananjay Mahapatra, Baby Manjhi’s case throws up need for law on surrogacy, TIMESOFINDIA (November 27, 2019), https://timesofindia.indiatimes.com/india/Baby-Manjis-case-throws-up-need-for-law-on-Surrogacy/articleshow/3400842.cms.

[31] The Surrogacy (Regulation) Bill, 2016 Section (4) (b)(ii).

[32] Maadhyam,TBI Blogs: Are you applying for Surrogacy? Here’s what the new bill could mean for you, THEBETTERINDIA (November 27, 2019), https://www.thebetterindia.com/97169/Surrogacy-regulation-bill-2016-commissioning-parents/.

[33] AasavriRai, Cabinet okays moving Amendments to Surrogacy (Regulations) Bill, 2016, LIVELAW (November 27, 2019), http://www.livelaw.in/cabinet-okays-moving-amendments-Surrogacy-regulation-bill-2016/.

[34] Indian Penal Code 1860 Section 375.

[35] Soibam Rocky Singh, Marital rape an offence under law, THEHINDU (November 27, 2019), https://www.thehindu.com/news/cities/Delhi/marital-rape-an-offence-under-law/article22467416.ece.

[36] RajyasreeSen, Maneka Gandhi tells us marital rape isn’t rape after all, LIVEMINT (November 27, 2019), https://www.livemint.com/Opinion/jdWYjEBWesSGEPl7aDgMbJ/Maneka-Gandhi-tells-us-marital-rape-isnt-rape-after-all.html.

[37] Criminalising marital rape will destabilise marriage: government tell HC, THEHINDU (November 27, 2019), https://www.thehindu.com/news/national/criminalising-marital-rape-will-destabilise-marriage-govt-tells-hc/article19581512.ece.

[38] Plessey v. Ferguson 163 U.S.537 (1896).

[39] Shayara Bano v. Union of India & Others.

[40] Ibid.

[41] The Muslim Women (Protection of Rights on Marriage) Bill, 2017.

[42] Muslim Women (Protection of Rights on Marriage) Bill, 2017 Section 3.

[43] Ibid.

[44] Muslim Women (Protection of Rights on Marriage) Bill, 2017 Section 4.

[45] Muslim Women (Protection of Rights on Marriage) Bill, 2017 Section 5.

[46] The Muslim Women (Protection of Rights on Divorce) Act.

[47] Muslim Women (Protection of Rights on Marriage) Bill, 2017 Section 6.

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