Unconstitutionality of Legislations for Being Obsolete, Outdated and Outlived

“Traditions that might have been acceptable at some historical point of time are not cast in stone. If times and situations change, so must views, traditions and conventions.”

Madan B. Lokur, J.

Independent Thought v. Union of India^[1]

This article attempts to answer an extremely contemporaneous question on the constitutionality of long-existing legislative provisions, executive decisions or even judicial precedents only on the ground of their becoming archaic, outdated and obsolete. In other words, the attempt would be to elucidate how constitutional courts of the country possess the power to strike down any legislative or an executive piece, if they find that a provision constitutionally acceptable at its birth becomes vulnerable after decades of its passing. How far the test of arbitrariness, fairness and proportionality have been applied to wipe off statutory provisions which have existed for decades together, being implemented successfully shall be the fulcrum of discussion in the present article.

Legislation becoming Arbitrary for being Obsolescent

This section would analyse whether time per se impacts the constitutionality of any statute or whether obsolescence can be pleaded as ground for striking down any legislation or any subordinate legislation before the constitutional courts of law. A factual situation fitting in the aforesaid legal issue arose for the first time before the Supreme Court in Motor General Traders v. State of A.P.^[2] in the year 1984. The challenge in this case was to the constitutional validity of Section 32 clause (b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 which exempted all the buildings constructed on and after 26-8-1957 from the operation of the Act. Resultantly, the validity of the Act was put to test in the late 1960s on the ground that the blanket exemption was not limited or restricted to any specific period and was an indefinite, ongoing in nature. It was pleaded that the landlords of these buildings had an upper hand vis-à-vis the buildings constructed prior to 26-8-1957 as insofar as their landlords and tenants were concerned. More than 200 buildings had come up and tenants were exposed to the whims of the landlords without any umbrella of protection. The question arose whether with the passage of time, especially after a decade, Section 30(2)(b) had become arbitrary by exempting all the landlords merely on the basis of a cut-off date. The State intensely defended enactment on the ground that if the same was constitutional at its birth and inception, its constitutionality cannot be assailed later merely on the passing of some time. It was argued by the State that Article 134 would not make any legislation suspect only because it became burdensome for some after a few years on the grounds of being arbitrary or violative of Article 14.

The 2-Judge Bench of the Supreme Court through an erudite judgment authored by Venkataramiah, J. whilst referring to various judgments, reaffirmed the proposition, vide para 22, that what was once a non-discriminatory piece of legislation may in course of time become discriminatory and hence can be challenged successfully on the ground of being violative of Article 14 of the Constitution. Spanning its discussion over various precedents on the issue, the court striking down Section 32(b) of the impugned Act, vide para 24, observed thus:

24 … the very fact that nearly twenty-three years are over from the date of the enactment of the impugned provision and the discrimination is allowed to be continued unjustifiably for such a long time is a ground of attack in these cases…. There being no justification for the continuance of the benefit to a class of persons without any rational basis whatsoever, the evil effects flowing from the impugned exemption have caused more harm to the society than one could anticipate. What was justifiable during a short period has turned out to be a case of hostile discrimination by lapse of nearly a quarter of century … mere lapse of time does not lend constitutionality to a provision which is otherwise bad. Time does not run in favour of legislation. If it is ultra vires, it cannot gain legal strength from long failure on the part of lawyers to perceive and set up its invalidity. Albeit, lateness in an attack upon the constitutionality of a statute is but a reason for exercising special caution in examining the arguments by which the attack is supported.[3]

In a way, the Supreme Court affirmed that the tide of time had potent sand power to wash off the mud of constitutionality from any legislation which many fault to justify the discrimination it occasions. Thus, judgment of the Motor General Traders^[4] was a benchmark in firmly laying the foundation that legislations become constitutionally vulnerable and can be successfully tested on grounds of obsolescence.

Issue of obsolescence again arose thereafter before the Supreme Court in Rattan Arya v. State of T.N.,^[5] wherein the validity of Section 30(ii) of the Tamil Nadu Buildings (Lease and Rent) Control Act, 1960 was under test. This provision provided that tenants of “residential buildings” paying monthly rent exceeding Rs 400 were exempted from the protection of the Act, whereas no such restriction was imposed in respect of tenants of “non-residential buildings” under the said Act. The Act was challenged as being violative of Article 14 on the grounds of such classification being unjustified and thus marred with arbitrariness. The 3-Judge Bench comprising B.C. Ray, K.N. Singh and O. Chinnappa Reddy, JJ. held that the tenants of the residential buildings deserved greater protection, and thus extended the protection only to those tenants of residential buildings paying rent > (more than) Rs 400 per month amounted clearly to cherry picking attitude of the legislature without any reasonable justification. It held that other classes of tenants cannot be denied the right conferred generally on all tenants of other categories of buildings, residential or non-residential. Ergo, the court struck down Section 30(ii) as being violative of Article 14. The illuminating judgment of O. Chinnappa Reddy, J. as speaking for the Court, vide para 4, propounded thus:

… We must also observe here that whatever justification there may have been in 1973 when Section 30(ii) was amended by imposing a ceiling of Rs 400 on rent payable by tenants of residential buildings to entitle them to seek the protection of the Act, the passage of time has made the ceiling utterly unreal. We are entitled to take judicial notice of the enormous multifold increase of rents throughout the country, particularly in urban areas. It is common knowledge today that the accommodation which one could have possibly got for Rs 400 per month in 1973 will today cost at least five times more. In these days of universal, day-to-day escalation of rentals any ceiling such as that imposed by Section 30(ii) in 1973 can only be considered to be totally artificial and irrelevant today. As held by this Court in Motor General Traders v. State of A.P.^[6] a provision which was perfectly valid at the commencement of the Act could be challenged later on the ground of unconstitutionality and struck down on that basis. What was once a perfectly valid legislation, may in course of time, become discriminatory and liable to challenge on the ground of its being violative of Article 14.

…

These observations were made in 1974 soon after the amendment of the Act in 1973. They were made in a different context and not in the context of the challenge to the vires of the provisions as violative of Article 14. As we pointed out earlier, the argument based on protection of the weaker sections of the community is entirely inconsistent with the protection given to tenants of non-residential buildings who are in a position to pay much higher rents than the rents which those who are in occupation of residential buildings can ever pay. We are, therefore, satisfied that Section 30(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 has to be struck down as violative of Article 14 of the Constitution.

The above judgment was followed by another landmark verdict of Malpe Vishwanath Acharya v. State of Maharashtra,^[7] the validity of the relevant provisions of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 was challenged on the ground that certain provisions of the Act pertaining to standard rent were ultra vires Articles 14, 19 and 21 of the Constitution and consequently void. The appellants were landlords of different premises in Bombay which had been rented out to various tenants. The writ petitions challenging the constitutional validity of Sections 5(10)(B), 11(1) and 12(3) of the Bombay Rent Act had been filed in the High Court of Bombay wherein the main challenge to the said provisions was on the ground that the restriction on the right of the landlords to increase rents, which had been frozen as on 1-9-1940 or at the time of the first letting, was no longer a reasonable restriction and the said provisions had, with the passage of time, become arbitrary, discriminatory, unreasonable and consequently ultra vires Article 14 of the Constitution. The Bombay High Court dismissed the writ petitions, upholding the validity of the impugned Bombay Rent Act. An appeal was thus brought before the Supreme Court. The Supreme Court though refrained from striking down the impugned provisions of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 stated that in light of the fact that the said Act is due to elapse on March 1998, any further extension of the existing provisions without bringing them in line with the views expressed in this judgment, would be invalid as being arbitrary and violative of Article 14 of the Constitution.

Vide paras 15, 29 and 30, while referring to Rattan Arya[8] as well as Motor General Traders[9] along with various other judgments, the Court observed thus:

… a statute which when enacted was justified may, with the passage of time, become arbitrary and unreasonable.

* * *

Insofar as social legislation, like the Rent Control Act is concerned, the law must strike a balance between rival interests and it should try to be just to all. The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society….
When enacting socially progressive legislation the need is greater to approach the problem from a holistic perspective and not to have a narrow or short-sighted parochial approach. Giving a greater than due emphasis to a vocal section of society results not merely in the miscarriage of justice but in the abdication of responsibility of the legislative authority. Social legislation is treated with deference by the courts not merely because the legislature represents the people but also because in representing them the entire spectrum of views is expected to be taken into account. The legislature is not shackled by the same constraints as the courts of law. But its power is coupled with a responsibility. It is also the responsibility of the courts to look at legislation from the altar of Article 14 of the Constitution. This article is intended, as is obvious from its words, to check this tendency; giving undue preference to some over others.[10]

Legislations becoming outdated and archaic in the context of doctrines of “progressive realisation” and “non-retrogression of rights”

Section 377 IPC controversy : Navtej Singh Johar case

This section analyses whether outdated legislations per se impact the constitutionality of any statute. A case study which most appropriately addresses the issue is the chequered history of invalidation of Section 377 of the Penal Code 1860. Section 377 IPC read thus:

Unnatural offences.— Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

The dispute arose at Delhi High Court in Naz Foundation v. State (NCT of Delhi)^[11] wherein a writ petition as a public interest litigation was filed challenging the constitutionality of Section 377. The petitioner argued that Section 377 forms part of an outdated legislation and it becomes imperative to revise the legislation with the societal changes in the society. Thus, advocating Section 377 is violative of Articles 14, 15 and 21 of the Constitution of India. The Division Bench of the Delhi High Court observed that Section 377 is violative of Articles 14, 15 and 21 of the Constitution discriminating against a particular community on the realm of gender and sexual identity, hence being violative of Article 14 of the Constitution of India.

The judgment of Naz Foundation[12] was challenged in Suresh Kumar Koushal v. Naz Foundation^[13]. A 2-Judge Bench of the Supreme Court reversed the judgment of Naz Foundation v. State (NCT of Delhi)^[14] and upheld the validity of Section 377 as constitutional. The appellate side argued that the provision is gender-neutral and hence, not discriminative of sexual orientation of citizens. In furtherance, the appellants argued that there was no intention of the framers of the Constitution to include sexual orientation within the term “sex”.

The respondent side argued that by holding the validity of this archaic provision, the court is accepting the community to be a criminal on the basis of their sexual orientation.

The Supreme Court observed that declaring any law per se unconstitutional should be the last resort for the Supreme Court and High Courts. The Court held that the provision of Section 377 is gender-neutral and does not segregate any particular community and thus not violative of Part III of the Constitution of India. Thereafter, review petitions were filed before the Supreme Court contesting the view of the 2-Judge Bench as validating an outdated and obsolete provision which by influx of time had become constitutionally obnoxious. Accordingly, the review petitions were accepted and the matter referred to the Constitution Bench, which affirmed and upheld the view of the Division Bench of the Delhi High Court penning its judgment with the title, Navtej Singh Johar v. Union of India.^[15] This landmark judgment was authored by the Constitution Bench of five Judges comprising Dipak Misra, the then CJI, A.M. Khanwilkar, Rohinton Fali Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ.

It was argued on behalf of the petitioners that there exists no prior classification between “natural sex and unnatural sex” within the legislation. The definition of the term “carnal intercourse” or even “against the order of nature”, has no meaning within the legislation. Thus, the petitioners claimed that Section 377 is arbitrary and hence violative of Article 14 of the Constitution of India.

The Supreme Court opined that the term “carnal intercourse” is to ascertain protection of women and children, however, it is not with an intention to not let the LGBT community not perform consensual carnal intercourse. In furtherance, the Constitution Bench explained that already a provision of Section 375 is in place for non-consensual acts, and thus Section 377 is not only needless but also unfair towards the community. Hence, it held that Section 377 of the Penal Code of 1860 is unconstitutional, as against Articles 14, 15, 19 and 21 of the Constitution of India.

The judgment holds seminal importance in the present article for propounding and implanting the “doctrine of progressive realisation” for testing the constitutionality of any statutory provision. The sequitur of the said doctrine is the “doctrine of non-retrogression”, which emanates out of the former. Explaining the said doctrine, the court held that rights always keep evolving and expanding and that there cannot be a question of retreat of rights in a developing society. The State, in light of the ever expanding nature of rights, is also under an obligation to ensure that the rights are allowed to evolve and flourish to their fullest extent instead of taking steps that vilify their existence. Explaining both the “doctrine of progressive realisation” and “doctrine of non-retrogression”, vide paras 201, 202 and 203, the Constitution Bench observed thus:

The doctrine of progressive realisation of rights, as a natural corollary, gives birth to the doctrine of non-retrogression. As per this doctrine, there must not be any regression of rights. In a progressive and an ever-improving society, there is no place for retreat. The society has to march ahead.

The doctrine of non-retrogression sets forth that the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise.

The aforesaid two doctrines lead us to the irresistible conclusion that if we were to accept the law enunciated in Suresh Kumar Koushal[16] (Suresh Kumar Koushal v. Naz Foundation), it would definitely tantamount to a retrograde step in the direction of the progressive interpretation of the Constitution and denial of progressive realisation of rights. It is because Suresh Kumar Koushal[17] (Suresh Kumar Koushal v. Naz Foundation) view gets wrongly embedded with the minuscule facet and assumes criminality on the bedrock being guided by a sense of social morality. It discusses about health which is no more a phobia and is further moved by the popular morality while totally ignoring the concepts of privacy, individual choice and orientation. Orientation, in certain senses, does get the neuro-impulse to express while seeing the other gender. That apart, swayed by data, Suresh Kumar Koushal[18] (Suresh Kumar Koushal v. Naz Foundation) fails to appreciate that the sustenance of fundamental rights does not require majoritarian sanction. Thus, the ruling becomes sensitively susceptible.[19]

Vide para 644, the Constitution Bench further observed thus:

History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The misapplication of this provision denied them the fundamental right to equality guaranteed by Article 14. It infringed the fundamental right to non-discrimination under Article 15, and the fundamental right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being “unapprehended felons”.[20]

From the above enunciation, it is thus clear that a statutory provision, which would have been constitutional at the time of its engraftment in the statute can become unconstitutional with the passage of time. Both the theories propounded above would deter the State from continuing those provisions, which may start conflicting and colluding with the ever expanding rights, once their ambit widens. Thus, in a way, the judgment of Naz Foundation[21] is an authority on the point that even those statutory provisions that have been implemented for a substantial period of time may become unconstitutional if they start infringing liberties and freedoms without the proportionate justification for the same.

The Aadhaar UID Number Controversy – K.S. Puttaswamy Case

Another instance at hand where the Supreme Court was confronted with the issue of applicability of expanding rights to the conflicting legislations is the judgment of K.S. Puttaswamy v. Union of India.^[22] The challenge in this case was mounted to the constitutional validity of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 and the UIDAI Scheme which was in process of being implemented through the Unique Identification Authority of India. The petitioners challenged that the statute violates the fundamental rights enshrined within the Constitution, primarily by advocating that right to privacy falls within the contour of Article 21 of the Constitution of India. The respondents relied upon the 8-Judge Bench judgment of M.P. Sharma v. Satish Chandra,^[23] holding that right to privacy is not a fundamental right. The dispute at an early stage was heard by a 3-Judge Bench, which referred the matter to the Constitution Bench. The 9-Judge Bench in conclusion in a unanimous decision held the right to privacy to be a part of fundamental rights enshrined under Articles 14, 19 and 21 of the Constitution of India.

Though the judgment is an authority for laying down the proposition that the right to privacy is a fundamental right guaranteed under Part III of the Constitution of India, but however for present purposes, it is quoted for the proposition that boundaries of reasonability, fairness, and rationality of any State action keep getting altered time to time. The court held that any legislative provision or executive decision has to be tested on the anvil of standards of reasonability and fairness governing the society at the relevant point of time and not on the date when such legislative provision was introduced or executive decision taken. The court accordingly held that right to privacy in the 21^st century, in a globalised world has become an essential facet of Articles 14, 19 of the Constitution of India and the legislative provisions have to adequately justify the necessity of the invasion of right to privacy, failing which they are bound to be struck down. Vide para 939, the Constitution Bench (5 Judges) in K.S. Puttaswamy[24] through Dr D.Y. Chandrachud, J. (minority opinion), spoke thus:

Technology and biometrics are recent entrants to litigation. Individually, each presents specific claims: of technology as the great enabler; and of biometrics as the unique identifier. As recombinant elements, they create as it were, new genetic material. Combined together, they present unforeseen challenges for governance in a digital age. Part of the reason for these challenges is that our law evolved in a radically different age and time. The law evolved instruments of governance in incremental stages. They were suited to the social, political and economic context of the time. The forms of expression which the law codified were developed when paper was ubiquitous. The limits of paper allowed for a certain freedom: the freedom of individuality and the liberty of being obscure. Governance with paper could lapse into governance on paper. Technology has become a universal language which straddles culture and language. It confronts institutions of governance with new problems. Many of them have no ready answers.

In K.S. Puttaswamy[25], therefore the minority opinion held that advent of technology has led to dimensional alterations in the definition of rights. The forms of expression of law, along with their interpretation have also undergone a sea change. Therefore, technology has become a major tool, whilst adjudicating and demarcating the peripheries of the redefined and redetermined rights. Though the majority opinion upheld the constitutionality of the Aadhaar Act (UIDAI Act), however the minority opinion chose to hold it unconstitutional for the reason that it trampled upon the right to privacy of its subjects, an invasion which was held to be disproportionate and unjustified with the cause it was designed to achieve.

Offence of Adultery, Section 497 IPC r/w Section 198(2) CrPC

Joseph Shine judgment

Other landmark judgment on the interplay of time with the twin doctrines of “non-retrogression of rights” and “progressive realisation” is the Constitution Bench judgment in another matter of Joseph Shine v. Union of India^[26]. In this case, a non-resident Joseph Shine filed a public interest lawsuit under Article 32 questioning the validity of offence of adultery provided under Section 497 IPC read with Section 198(2) CrPC. Section 497 IPC read thus:

“497. Whoever has sexual intercourse with a person who is and whom he knows and reason to believe to be the wife of another man, without the consent or connivance of that man. Such sexual intercourse does not amount to the offence of rape and is guilty of adultery. A man found guilty of adultery should be punishable with imprisonment of either description for a term which may extend to the five years or with fine or both.”

Section 198 CrPC read thus:

Prosecution for offences against marriage.

(1) No court shall take cognizance of an offence punishable under Chapter XX of the Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence: Provided that—

* * *

(2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code:

Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the court, make a complaint on his behalf.

* * *

(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.

The aforesaid two provisions were challenged on the ground that they fettered the sexual choices, freedom, and discretion of women, making her subordinate to the discretion and will of men, thus leading to gender inequality. The provision was defended by the Union and the State on the ground of being occupying the field for almost a century and having not led to any kind of unfair discrimination in its implementation and operation. The Constitution Bench in a beautifully articulated judgment, speaking through the majority, propounded and reiterated the theory of “transformative Constitution”; a Constitution that keeps transforming as per the changing societal perceptions, progressive thought and necessities of time. The court held that the certainty of law must always yield to and be amenable to rights as are expanded by the courts on the basis of societal changes. The court further held that the law can never presume to be inflexible for it to be certain, rather the certainty of law is ensured more by its progression and perceptual shift from time to time as the changing society expects it to be. The majority view authored by Dipak Misra, the then CJI and A.M. Khanwilkar, J., vide paras 1, 3, and 4, observed thus:

… In such a situation, the essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than the space in an annexe to the main building. That is the manifestation of concerned sensitivity. Individual dignity has a sanctified realm in a civilised society. The civility of a civilisation earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. Any provision that might have, few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception. A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time to say that a husband is not the master. Equality is the governing parameter.

* * *

At this juncture, it is necessary to state that though there is necessity of certainty of law, yet with the societal changes and more so, when the rights are expanded by the court in respect of certain aspects having regard to the reflective perception of the organic and living Constitution, it is not apposite to have an inflexible stand on the foundation that the concept of certainty of law should be allowed to prevail and govern. The progression in law and the perceptual shift compels the present to have a penetrating look to the past.
When we say so, we may not be understood that precedents are not to be treated as such and that in the excuse of perceptual shift, the binding nature of precedent should not be allowed to retain its status or allowed to be diluted. When a constitutional court faces such a challenge, namely, to be detained by a precedent or to grow out of the same because of the normative changes that have occurred in the other arenas of law and the obtaining precedent does not cohesively fit into the same, the concept of cohesive adjustment has to be in accord with the growing legal interpretation and the analysis has to be different, more so, where the emerging concept recognises a particular right to be planted in the compartment of a fundamental right, such as Articles 14 and 21 of the Constitution…. What might be acceptable at one point of time may melt into total insignificance at another point of time. However, it is worthy to note that the change perceived should not be in a sphere of fancy or individual fascination, but should be founded on the solid bedrock of change that the society has perceived, the spheres in which the legislature has responded and the rights that have been accentuated by the constitutional courts. To explicate, despite conferring many a right on women within the parameters of progressive jurisprudence and expansive constitutional vision, the court cannot conceive of women still being treated as a property of men, and secondly, where the delicate relationship between a husband and wife does not remain so, it is seemingly implausible to allow a criminal offence to enter and make a third party culpable.[27]

The concurring opinion of Indu Malhotra, J.^[28] explicitly went on to state that a law which could have been justified at the time of enactment may become outdated and discriminatory with the passage of time, evolution of society and changed circumstances. Referring to the landmark judgment of Motor General Traders[29] and Rattan Arya[30], the concurring opinion of Malhotra, J. held that even a perfectly valid and enforceable legislation meant to protect women at any decade of a century, relevant in a particular historical background (in which it was framed), may with the efflux of time become obsolete and archaic. It elaborately explained how a law necessitated by way of historical compulsions for the protection of women may become suffocative for them in another changed social background.

Accordingly, the majority struck down Section 497 IPC as unconstitutional, being violative of Articles 14, 15, and 21 of the Constitution of India, as also Section 198(2) CrPC insofar it prescribes the procedure for prosecution of offence of adultery relating to the aforementioned Section 497.

The “Triple Talaq controversy” – Shayara Bano judgment

Another Constitution Bench judgment that tested the validity of pre-independence laws on the anvil of changing time and scenario is the judgment of Shayara Bano v. Union of India^[31]. The petitioner, Shayara Bano, had been married to her husband, Rizwan Ahmed, for 15 years. In 2016, he divorced her through instant triple talaq (talaq-e-bidat) i.e. a practice that allows a man to divorce his wife by saying the word “talaq” three times in one sitting without his wife’s consent. Shayara Bano filed a writ petition in the Supreme Court pleading to declare three practices talaq-e-bidat, polygamy, and nikah-halala as unconstitutional as they violated the fundamental rights of Muslim women enshrined in Articles 14, 15, 21, and 25 of the Constitution of India.

Nikah-halala means a practice in which a divorced woman who wishes to remarry her husband must marry and get a divorce from a second husband before remarrying her first husband while polygamy means the practice of Muslim men having over one wife.

The Constitution Bench of the Supreme Court, by a 3:2 majority, set aside and declared the practice of instantaneous triple talaq aur talaq-e-bidat to be unconstitutional under Article 14 read with Article 13(1) of the Constitution of India. The majority speaking vocally through R.F. Nariman, J. relied upon the judgment of Rattan Arya[32], Malpe Vishwanath[33] and Motor General Traders[34] to hold that a law may get frozen after a passage of time, may become so archaic that its reconciliation with existing social norms and beliefs gets impossible. Even though the courts had earlier declared any legislative provision constitutional and validly enacted, the courts at a later stage may always dive deep again for examining the constitutionality of any already affirmed statutory provision. If the provision under challenge fails to meet the challenge of reasonability and fairness on the date of scrutiny by the court, then irrespective of its long life over the decades, it is susceptible to be struck down by the constitutional courts exercising plenary powers of judicial review. The majority judgment, vide paras 88 and 104, in Shayara Bano[35] opined thus:

We only need to point out that even after McDowell[36] (State of A.P. v. McDowell & Co.), this Court has in fact negated statutory law on the ground of it being arbitrary and therefore violative of Article 14 of the Constitution of India. In Malpe Vishwanath[37] (Malpe Vishwanath Acharya v. State of Maharashtra), this Court held that after passage of time, a law can become arbitrary, and, therefore, the freezing of rents at a 1940 market value under the Bombay Rent Act would be arbitrary and violative of Article 14 of the Constitution of India (see paras 8 to 15 and 31).

* * *

Given the fact that triple talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad[38] (Rashid Ahmad v. Anisa Khatun), such triple talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara[39] (Shamim Ara v. State of U.P.). This being the case, it is clear that this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognise and enforce triple talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognises and enforces triple talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.

Accordingly, the Constitution Bench of the Supreme Court struck down the practice of triple talaq and also Section 2 of Muslim Personal Law (Shariat) Application Act, 1937, being manifestly arbitrary and leading to grossest form of gender inequality against the women.

The Domestic Violence Act Controversy – Hiral P. Harsora judgment

Another judgment where arose the question of constitutionality of a provision enacted a decade being marred by discrimination against females on the side of an adult male was Hiral P. Harsora v. Kusum Narottamdas Harsora^[40]. This case deals with the constitutional validity of Section 2(q) of the Protection of Women from Domestic Violence Act, 2005 (DV Act) defining the term “respondent” as:

… 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.

The mother and daughter filed a writ petition challenging the constitutional validity of Section 2(q) on ground that it does not apply to them. The lower court had previously passed an order dated 5-1-2012 through which discharge from criminal proceedings was refused. In a writ petition filed against the said order, on 15-2-2012, the Bombay High Court, on a literal construction of the 2005 Act, discharged the aforesaid three respondents from the complaint.^[41] The Bombay High Court by its judgment dated 25-9-2014 held that Section 2(q) needs to be read down.^[42] The said judgment was taken in appeal to the Supreme Court of India.

The Supreme Court, vide paras 36 and 39, of the judgment struck down Section 2(q), reiterating the well-settled law that validity of an enactment can be tested even after the decades of its enactment. The Supreme Court struck down the word “adult male” before the word “person” occuring in Section 2(q) as it discriminated between people similarly situated and got far removed from the object sought to be achieved by the DV Act, 2005. Whilst striking down the relevant portion of Section 2(q), the court held that the relation of classification has ceased to be real or substantial and has lost its rationality with the passage of time, losing its relation/nexus with the parliamentary intent behind its enactment. This judgment of the Supreme Court is hailed as one of the landmark in family law jurisprudence in wiping out a palpable discrimination which was in existence for more than a decade.

Conclusion

From the above analysis, it can safely be said that courts have never resisted to test the constitutionality of any legislative provision existing for long on the “ground of obsolescence, becoming outdated or archaic” in nature. However, in the process, a lot of judicial craftsmanship is involved as a legislative provision cannot be struck down on a mere asking. It has to be proved that the provision under challenge has become obsolete and unpalatable with the passage of time. It has to be proven that the restrictions or the classifications occasioned by the provision enacted decades back are no more proportionate or necessary in the changing paradigm. With the process of ever expansion of rights and their social acknowledgement by the subjects of the State, a legislative or an executive decision has to qualify the test of falling outside the newly drawn boundaries of expanded and redefined rights.

Therefore, it is too late to argue in the day that courts lack the power to test the constitutionality of provisions on the ground of their becoming stale, outdated over the passage of time, failing to meet the test of reasonability and proportionality of the redefined rights under our Constitution.