“A rape is a rape and a rapist remains a rapist, and no amount of classification and no amount of verbal jugglery can alter that reality”, amicus curiae and senior advocate, Rajshekhar Rao told the Delhi high court bench of Justices Rajiv Shakdher and C. Hari Shankar hearing a batch of petitions challenging exception in the Indian Penal Code (IPC) to marital rape on Thursday.

Exception 2 to the Section 375 (Rape) of the IPC states that the sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. In common parlance, this exception is referred to as ‘marital rape’.

At the outset, Justice Rajiv Shakdher informed the High Court that this morning, the Solicitor General (SG) had mentioned the matter before him to say that the government is considering the matter with a constructive approach. Justice Shakdher told the vourt that he responded to the SG that the bench would be only happy if the trouble of writing the judgment is taken out of their hands if something like this happens. He added that he also informed the SG that the bench would hear the Amicus Curiae, and would conclude the hearing next week instead of this week.

Advocate Monica Arora, who was appearing for the Union Government during the course of the hearing, informed the Court that the union government has invited suggestions from all the Chief Ministers, Chief Justices of the High Courts, Members of Parliament (MPs), National Law Universities and Bar Councils regarding the comprehensive exercise the government intends to undertake to revamp the criminal law. To this Justice, Shakdher said, “this is a general exercise you are taking, and I had read about it in the newspaper. If vis-a-vis 375, you have some suggestions, then we will consider that”.

After that, the bench proceed to hear the arguments advanced by Amicus Curie Rajshekhar Rao. Rao took the position against marital rape and sought a declaration to declare Exception 2 to Section 375 IPC unconstitutional, as being violative of Articles 14 and 21 of the Indian Constitution. He called the exception egregious in as much as it denies a wife the ability to prosecute her husband for the act of rape whereas if the same were perpetrated by any other male, she would be entitled to do so.

Rao urged the Court to consider the interpretation that even assuming the exception satisfies the test of Article 14, it is possible to hold that it still violates the mandate of Article 21, and therefore it should still be struck down.

“Even if your lordship were to find that there may be some basis in law for classifying a married woman and an unmarried woman separately or married woman in a marriage and a married woman outside the marriage living separately, should the provision still not be liable to be tested on the touchstone of Article 21 independently”, Rao asked.

Interjecting the submissions of Rao, Justice Shankar remarked “if you talk about classifying a married and unmarried woman, please remember in offence of rape there are two partners. We have to say classifying situation of a married couple and unmarried couple”. He added that most of the arguments so far are more bordering on outrage rather than law”.

Justice Shankar lamented the seriousness of the matter. He said the Court is called upon to do a very serious thing, that is, to strike down a provision which would result in the creation of an offence punishable up to 10 years.

“I have not come across any such precedent. If we have to do it, we will do it, but we have to be conscious of the seriousness of what we are doing”, Justice Shankar said. He added that the Court has to see the legal part of the matter, and the challenge to the exception can succeed only on the well-defined parameters to test the validity of legislation. “We must see the legal part of it, rather than how outrageous the law is”, Justice Shankar said.

Resuming his arguments, Rao submitted that the foundational basis of Section 375 is consent and the punishment is because you do the act without consent. He submitted that the act of non-consensual sexual intercourse or rape is abhorrent and inherently violative of the basic right to life and liberty guaranteed by Article 21 in any context. Citing the judgment of the Supreme Court in Moti Lal vs. the State of M.P. (2008), Rao submitted that the rape is the infliction “not merely of a physical injury but the deep sense of some deathless shame, and causes deep psychological, physical and emotional trauma thereby “degrading the very soul of the victim”. These are, Rao argued, the consequences of the rape.

Rao further argued that rape violates a women’s right to (a) equality and equal status of all human beings; (b) dignity and bodily integrity; (c) personal and sexual autonomy; (d) bodily and decisional privacy, and (e) reproductive choices. He, thus, contended that Exception 2 to section 375 decriminalizes such non-consensual intercourse by a husband upon his wife and is therefore unconstitutional.

Rao argued that there is no justification or basis for exception 2 to section 375, and he attempted to link it to manifest arbitrariness – a ground to strike down a law. He said if it were any other man, the woman would be able to prosecute that person for rape, but if it were her husband, she cannot do so. He gave an example that the same couple at various stages has different legal umbrellas, that is, pre-marriage, during marriage and post marriage.

“Classification based on marital status creates an anomalous situation giving married women lesser protection against non-consensual sexual intercourse by their own husbands against strangers. Further, it also results in lesser protection for them than cohabits and live-in-partners. This not only defeats the State’s purported aim of giving the institution of marriage a higher footing but in fact, militates against the notion that such classification, in some way, protects it. This is particularly disconcerting when, in the same breath, the IPC itself recognises the act of being perpetrated by a person in a “position of trust”, that is, Section 376(2)(f) or “in a fiduciary capacity” i.e. Section 376C, is more egregious than one done by a stranger”, Rao submitted.

Giving an example of a sex-worker, who can prosecute a person for rape for having committed non-consensual sex, Rao submitted “every other woman (including a woman who is socially perceived as ‘unchaste’ or ‘of easy virus and with whom sexual intercourse is arguably to be expected i.e. in the case of sex-worker) is entitled to the right to say no and prosecute for rape. However, the effect of Exception is to render the wife’s consent immaterial in as much as she cannot prosecute her husband for having non-consensual sexual intercourse.”

“There can be no greater indignity that the law can heap upon a woman than to deny her the right to prosecute for the violation of her bodily integrity, privacy and dignity and that too at the hands of her husband, who she would legitimacy expect to receive love and affection from and who would be expected to safeguard her interest”, Rao submitted.

Denial to a married woman to prosecute her husband for rape violates her dignity, Rao contended. He also submitted that “to suggest that the ability to prosecute an act (which would otherwise be classified as ‘rape’) as an assault (Section 351 IPC), sexual harassment (Section 354A IPC) or ‘outraging her modesty (Section 354 IPC), inter alia justifies the Exception, is tantamount to the law turning a blind eye to a gross injustice that continued for over a century,” Rao argued.

“Additionally, it unconsciously trivializes an act which have grave and irreversible consequences on the very being of the victim. For this reason alone, the Exception deserves to be struck down”, he said.

Rao heavily relied upon the doctrine of manifest arbitrariness as explained by the Supreme Court in Shayara Bano vs. Union Of India (2017). He relied upon the part in which the Court held “The thread of reasonableness runs through the entire fundamental rights Chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article”.

Citing from the said judgment, Rao added “The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.”

“The absence of consent is the foundation of the offence of ‘rape’. Thus, decriminalisation of an act by husband, when that act would otherwise constitute ‘rape’ under the IPC, is based upon the archaic belief that the very act of marriage contemplates ‘consent’ by the wife for sexual intercourse with the husband for all times to come i.e. during the existence of the matrimonial relationship(or at least till such time as the parties are not ‘living separately, whether under a decree of separation or otherwise). Apart from being founded on an absolutely outdated and obsolete notion of the concept of marriage and the status of a wife within it, such a presumption of consent is inconsistent with applicable law. Any suggestions to the contrary is manifestly arbitrary and unreasonable and constitute a gross denial of equal protection of law to married women”, Rao submitted.

No new offence envisaged

Addressing the concerns raised by the Court whether it would be creating a new offence if it were to strike down the Exception, Rao submitted that Article 13 read with Article 226 empowers High Courts to strike down laws that are inconsistent with or in derogation of fundamental rights.

“This has been consistently interpreted as casting a positive obligation on constitutional courts to declare such laws as unconstitutional, more so when legislatures have been lethargic, despite multiple recommendations being made by law commissions or other such bodies. In discharging this obligation, courts must also examine whether the effect of a legislation is to create an artificial distinction between different classes of persons. This duty becomes especially significant in the context of the overarching role of courts in implementing gender equality and enabling access for women to mechanisms of grievance redressal against gender-based violence”, Rao argued.

He summarised his arguments to this point as follows:

• It will merely remove an exception that has been created by way of legislative fiction which it finds discriminatory and unconstitutional. The acts that will become punishable as ‘rape’ after removal are already punishable as other offences under the IPC and no new behaviour is being criminalised
• There will be no violation of Article 20(1) as striking down will operate prospectively.
• Courts have previously expanded the application of existing offences by revoking exemption granted to a class or by removing differences in sentence for different classes
• Judicial review of legislation on the anvil of fundamental rights does not violate the separation of power and is consistent with it. It is, in fact, a constitutional obligation cast upon the court

Justice Shakdher during the hearing observed that if it is a rape, it is serious, and therefore to say that we would exclude certain circumstance because of inter-parte relationships is problematic. He said the courts have gone very far by saying that sex workers can say no at any stage; therefore, can a wife be put at a lower pedestal; can a wife be less empowered by law?, he asked.

Rao’s arguments remained inconclusive for the day.

Earlier, the Delhi Government defended the exception, saying that marital rape is already covered as a crime of cruelty under the IPC. It also said that the courts have no power to legislate any new offence.

“Marital rape is a crime of cruelty in India. Married women and unmarried women are different under every single law,” Delhi government lawyer, Nandita Rao told the bench.

Advocate Karuna Nundy, appearing for the petitioner, All India Democratic Women’s Association (AIDWA), argued that the Exception suffers from irrationality and manifest arbitrariness inasmuch as it provides immunity to a man for forcibly having sex with his wife, but not to a man forcibly having sex with a woman who is not his wife (who may, for instance, be his live-in partner).

“Such privilege of the purported sanctity of an ‘institution’ over the rights of the individuals involved is manifestly arbitrary and thus in violation of Article 14”, she argued. She added the Exception also violates Article 19(1)(a) since the expression of one’s sexual desire is part of self-expression protected by this Article.

The Court will continue to hear the matter on Friday.

Meanwhile, the High Court has asked senior advocate Rebecca John to assist the court in the matter. She would be addressing the court on the issue next week.