Editor's Note: A nation’s legal system is integral to how its citizens look upon issues that concern the country in general and their individual lives in particular. Despite having the world’s longest Constitution — not to mention, one that has gone through numerous amendments and the many directives by the Supreme Court that have secured the stature of de facto law, the Indian law books have struggled to evolve at a pace commensurate with the rapid changes society has undergone. As the load of being archaic becomes heavier on our law system, Firstpost introduces a 10-part series titled 'Letter of the Law' to push forward the debate on legal practices and the law itself. The series will explore a variety of aspects pertaining to Indian law through opinion and analyses.
“While the murderer destroys the physical frame of his victim, a rapist degrades and defiles the soul of a helpless female. When the victim is a mentally challenged person, there is not only physically violence and degradation and defilement of the soul, but also exploitation of her helplessness.”
- Justice Arijit Pasayat, Tulsidas Kanolkar versus State of Goa (2003)
The Supreme Court’s dismissal of women’s agency when adjudicating rape cases is a pattern that has emerged over decades. The trouble with our codified rape laws, and the subsequent judicial actions, is that the intentions and concerns of our judiciary are often misguided. The courts, have over the years, debated the changing contours of the definition of rape, the due diligence of the survivor to avoid victimhood, and the influence of the public/private discourse on the crime, but have hardly ever argued on the harm of the act of the rape on the victim. This has created what can only be considered as an unwarranted and indefensible disparity in the way that courts have perceived rape adjudication and sentencing; this disparity is impacted by myths, stereotypes and preconceived notions about the crime and the victims of rape. As a result, the determination of guilt in rape cases is never an objective, detached process.
A system that has allowed prejudice and subjectivity to creep in for decades cannot be said to have certain set yardstick or standard to adjudicate cases of rape, and in turn, ends up perpetrating rape culture by normalizing and trivialising the effects of the offence. This is also a system that repeatedly discredits instances of rape within a marriage claiming that recognition of marital rape would amount to “excessive interference with the marital relationship”.
This system was stunned into silence in December, 2012 when the brutal gangrape of a 23-year-old woman in Delhi kindled a national conversation about the safety of women in public spaces, and how our legal system was inadequate to deal with the challenges that the case presented. The case of Jyothi Pandey — who was hailed by fictitious names of Damini, Nirbhaya, Amanat, an attempt to escalate her to a higher realm and isolate her from the cruelty of the rape — in December, 2012 sparked debates about how the insertion of an iron rod into the vagina of the victim did not amount to rape, only the penile-penetration did. Should a brutal actus reus of penetration of an object that is not the penis, coupled with the mens rea of malignant harm be classified as rape? The Justice Verma Committee grappled with such questions.
Previously in the 1970s, the Indian Courts found themselves in a similar conundrum — a young girl, Mathura, “habituated to sexual intercourse”, was the victim of custodial rape. The Sessions Court acquitted the two policemen of all rape charges as, in their opinion, there was consent to sexual intercourse. The High Court held that passive submission due to fear induced by coercion could not be construed as consent or willing sexual intercourse; however, the Supreme Court, at the crossroads of what can be considered a watershed moment for rape adjudication, made a blatant error by acquitting the accused policemen because, they opined, there were no visible marks of struggle during the ordeal which suggested the presence of consent. Tukaram versus State of Maharashtra (1979), thus, became a significant case that indicated how a rape victim gets caught in the maelstrom of patriarchy and victim blaming when battling effete laws.
Years later, during the December, 2012 case, the brutality and viciousness of the incident left no crevices for the stereotypes of chastity, virginity and the good woman/bad woman dichotomy to creep in and influence the rape adjudication. The parliament, the executive, the judiciary and the media were united against the brutality of the rape. The questions remained — would women have to be violated in such heinous ways to bring about societal change? Would such a violence have to be in public realm to be recognised? Why hasn’t there been a change in the judicial consciousness about rape in the private domain?
Section 375 of the IPC, that defines rape, contains within it an exception — women who want to challenge sexual violence from their husbands are currently denied the protection of the state as the provision contains a marital rape exemption. The history of this exemption can be traced back to the principle of ‘implied consent’ by Sir Matthew Hale which appears in his History of the Pleas of the Crown (1736) — “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.” Lord Halsbury opines similarly — “As a general rule, a man cannot be guilty as a principal of rape against his wife, for his wife is in general unable to retract her consent to cohabitation which is part of part of the contract of marriage. The architect of the penal code, Lord Macaulay, introduced the definition and punishment of rape in clauses 359 and 360 of the draft of the Indian Penal Code, 1860. He followed the same common law principle of not recognising marital rape as an instance of rape. The only mode of protection from rape or sexual assaults within households was the age of consent, which could only protect child wives (age of consent at the time of the draft was ten years, while now it has been increased to fifteen years). However, consent is immaterial, as per the IPC, if the woman is above the age of fifteen years, and the rape legislation bestows absolute immunity to the husband to impose himself on his wife and exercise complete sexual control over her body, in direct contravention to human rights regulations.
The Supreme Court in Bodhisattwa Gautam versus Subhra Chakraborty (1995) has pronounced that rape is a crime against basic human rights and the violation of the victim’s right to life and dignity under Article 21 of the Constitution. In the case of State of Maharashtra versus Madhkar Narayan (1991), the Supreme Court has held that every woman was entitled to sexual privacy and such privacy must be free of violations. Despite these principles, the judiciary has refused to include marital relations in rape adjudication and has not recognised that marital rape exists and that its exemption from Section 375 is violative of constitutional rights.