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Analysing fair labelling in rape laws: A reading of the Delhi High Court’s verdict on constitutionality of marital rape

Establishing the distinctiveness of rape as an offence over the institution of marriage would have contributed to the elimination of intelligible differentia and the strengthening of the premise for labelling the act as rape, and once these offences are differentiated, fair labelling seeks to simply divide criminal conduct amongst the offences so differentiated.

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I will analyse the fair labelling principle as argued in the Delhi High Court’s verdict on the constitutionality of the marital rape exception (MRE) laid out under Exception II of Section 375 (rape) of the Indian Penal Code in RIT Foundation versus Union of India.

The principle of fair labelling goes a step beyond description and differentiation, and broadly refers to categorising like offences together, depending on responsibility, outcome and the intent. The counsel for the petitioners in RIT Foundation used the principle to argue that an act of forced intercourse involving penetration committed by the husband upon his wife should ideally be penalised as marital rape since labelling is an important part of the criminal law jurisprudence, and it could help the prosecution, defence and other stakeholders in making fair decisions and dealing with the gravity of the offence.

The principle of fair labelling goes a step beyond description and differentiation, and broadly refers to categorising like offences together, depending on responsibility, outcome and the intent.

However, despite the consensus between the prosecution, defence, and the judges on not condoning this act of force, Justice C. Hari Shankar disapproved the use of the word ‘rape’ in the context of marital sexual relations. He reasoned that the Parliament has chosen to not label the offence as rape so the argument of fair labelling does not hold ground either, since conjugal relations will act as intelligible differentia, prohibiting the penalising of the occurrence as rape.

Also read: Justice C. Hari Shankar’s defence of marital rape is a homage to patriarchy

This article is an attempt to expand on the nuances within the implicitly presumed justifications and the use of the fair labelling principle in the petitioner’s arguments, and analyse the court’s understanding of the same.

Fair labelling in criminal law

In 1981, English lawyer and academic Andrew Ashworth in his book chapter ‘The Elasticity of Mens Rea’, discussed the principle of ‘representative labelling’ which was later renamed and modified into the fair labelling principle by Welsh legal scholar Glanville Williams in his article ‘Convictions and Fair Labelling’ in his response to Ashworth. The primary concern of fair labelling, Ashworth  states, “is to see that widely felt distinctions between kinds of offences and degrees of wrongdoing are respected and signalled by the law, and that offences are subdivided and labelled so as to fairly represent the nature and magnitude of the law-breaking.

While neither Williams nor Ashworth elaborated upon the principle in any great detail in their papers, as they focussed on transferred intent, fair labelling has come to be one of the governing principles of criminal law.

The idea of fair labelling is to apply a label to an offence that fairly represents the wrong committed by the offender. The naming of the offence assumes more importance than the differentiation itself. While frequently deployed, fair labelling has often been assumed to be a principle of self-evident value invoked without any justification of its underlying principles, even though many of these assumed principles are often contrary to each other and need to be resolved before talking of labelling. However these assumptions were not elaborated upon by either the petitioners before advancing the arguments for the applicability of the fair labelling principle, or in the reasoning laid out by Justice C. Hari Shankar while dismissing its applicability.

Petitioner’s arguments and the reasoning by Justice Hari Shankar

Advocate Karuna Nundy on behalf of the petitioners, forwarded the arguments on fair labelling with the justification that the label attached to the offence should provide sufficient information to the public with respect to the crime committed, and elaborated on the variety of ways that labelling the act of non-consensual penetrative sex as marital rape could be beneficial for its educative and declaratory effects, the reinforcement of societal standards and the disapproval of rape. She argued for the necessity of labelling the offence for what it is, so the victim could seek protection and claim other rights.

The idea of fair labelling is to apply a label to an offence that fairly represents the wrong committed by the offender. The naming of the offence assumes more importance than the differentiation itself.

In response to the argument of fair labelling, Justice Hari Shankar treated the term ‘marital rape’ as an oxymoron and stated that this argument by the petitioners is premised on a false assumption that every act of non-consensual sex, by a man with a woman, is rape, when in fact marriage acts as intelligible differentia disqualifying the offence from being categorised as rape. He reasoned that the unique demographics of marriage extend to the sexual sphere and would justify differential treatment being extended to sexual acts within marriage, even if non-consensual, while adding that it has not been sufficiently argued by the petitioners why marriage could not justify this exception.

He urged the petitioners to distinguish beyond the legal and etymological, and since the Parliament has chosen to not label the offence as rape, the court could not do so either, considering it is not in derogation of the Constitution, he reasoned.

Also read: Making Marital Rape a crime does not destroy the institution of marriage

Identifying and analysing the rifts in this discourse

Justice Hari Shankar is partially unerring in pointing out the advocacy of the petitioners in favour of labelling of the offence of forced intercourse as rape without completely elaborating on why marriage in their understanding would not justify the exception under Section 375.

In the interstices of the carefully laid out arguments in favour of the principle is implicit the petitioner’s assumption that the fair labelling principle is absolutely binding, even when it clearly demands reconciliation at different levels! Fair labelling is done while keeping the intended audience in consideration, and is to be preceded by offence differentiation and followed by fair naming, principles of both of which must be reviewed to satisfy the applicability of this principle. Differences of degrees in offences — for this discussion the degree of difference between domestic (including sexual) violence and rape — would distinguish the offences.

This differentiation is further based on considerations of blameworthiness and pragmatism, that is, if the differentiation can be balanced with the rule of law. An increase in the range of available charges warrants legitimate concern from stakeholders in law since it thereby also increases the possibility of disarray at different stages of the criminal process. In fact, a rule of law perspective would give us a stronger reason to avoid narrowly defined assessments of blameworthiness at the substantive stage, which the petitioners argue for, than at the sentencing stage.

In response to the argument of fair labelling, Justice Hari Shankar treated the term ‘marital rape’ as an oxymoron and stated that this argument by the petitioners is premised on a false assumption that every act of non-consensual sex, by a man with a woman, is rape, when in fact marriage acts as intelligible differentia disqualifying the offence from being categorised as rape. 

An argument in favour of labelling of the said offence should have ideally included a detailed discussion on how the offence as it is sought to be labelled would not threaten ideals of clarity and intelligibility in the law, instead of merely suggesting the entrustment of the role of evidence evaluation to lower courts. Establishing the distinctiveness of rape as an offence over the institution of marriage would have contributed to the elimination of intelligible differentia and the strengthening of the premise for labelling the act as rape, and once these offences are differentiated, fair labelling seeks to simply divide criminal conduct amongst the offences so differentiated.

Also read: Criminalizing marital rape: When is an exception not an exception?

Justice Hari Shankar’s dismissal of the application of the fair labelling principle in this scenario is broadly based on three grounds: a) that the Parliament expressly chose to not label the offence as rape and doing otherwise would amount to impressible judicial legislation; b) the petitioners’ faulty assumption that forced sexual intercourse accompanied by the lack of consent in any scenario would amount to rape is based on their failure to distinguish between etymology and the law in labelling the act; and c) the vindicated constitutionality of the exception justified by marriage. While this article does not delve into the issues of constitutionality of the statute, the dismissal of fair labelling on the former grounds remains erroneous.

The petitioners by their arguments have only sought to ‘label’ the said offence as marital rape, which would amount to criminalising it, whereas the onus of fairly ‘naming’ it would still rest with the Parliament. Justice Hari Shankar has overlooked this distinction, implying that labelling can solely be the Parliament’s prerogative.

Fair labelling of offences, to put simply, includes giving descriptively accurate names post-differentiation that would precisely describe the conduct that constitutes the offence. While fair labelling and naming must be reconciled, fairness in labelling is what leads to fair naming. Accurate naming, on the other hand, goes a step ahead and is achieved by ensuring that the definition of the offence matches the public understanding of the label concerned, which is where the argument in favour of the popularly elected Parliament’s democratic and political prowess (as opposed to that of a non-elected body like the high court) holds ground. Fair naming considers public opinion which could be either a call for social confirmation or change.

The former requires the exercise of social morality whereas the latter calls for application of critical morality, both of which are interdependent since criminal law only gets so many ‘credibility chips’. That is to say, we could attempt to revolutionise social morality by changing the law, starting from offence differentiation, proceeding to labelling and then naming, but the law’s ability to do this will depend on its generally following social morality.

Regrettably, one of the irrefutable defences of fair labelling, which lies in its adulation of the ideals of justice, was not raised by any of the parties before the court.

A departure in the name of critical morality may need to be justified individually, and had the petitioners attempted to do this at the level of differentiation before labelling of the offence, the need for naming it as such would have been evident. However, bringing it to the fore, there is a broad consensus on not condoning the offence amongst all the stakeholders and since the petitioners demand a mere change in the label attached to the offence which distinguishes it substantively without the want for any procedural change, the Parliament choosing to name the offence differently was not of any substantial concern to the fair labelling argument at this stage. The expectation to clearly distinguish etymology and the law, the semantics from the pragmatics, stems from logo centric concerns, assuming the two can be divorced and it be missed that solving the paradox, if any, within legislative languages is the duty of the courts.

Also read: Time to criminalise marital rape

Regrettably, one of the irrefutable defences of fair labelling, which lies in its adulation of the ideals of justice, was not raised by any of the parties before the court. While the principles of offence differentiation have to be balanced against a more pragmatic approach to the rule of law and fair naming can only sparingly use critical morality to question the basis of social confirmation, balancing these concerns against achieving justice for the victims of the offence so as to require it to reflect these distinctions in the nature and seriousness of offenders’ wrongdoing, would differentiate it from other suggested offences, allowing the space for labelling.

Be that as it may, Algerian-French philosopher Jacques Derrida had concluded that justice resides in the experience of implicit paradoxical dilemmas and in the moments of continuity of this paradox. As we look forward to the Supreme Court’s ruling on the constitutionality of the matter, it is imperative that we laud the ongoing oscillating discussions around the issues of marital rape to conclude this article with an acclamation!

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