Beer Biceps, Chhattisgarh HC’s marital rape decision and the making of a crime in Hindu majoritarian India

SOCIAL media influencer Ranveer Allahabadia’s question to a contestant on the online show ‘India’s Got Latent’ has attracted not only public outrage, but systematic response from various State authorities. By mid-February, the Maharashtra Cyber Department had filed a First Information Report (‘FIR’) against Allahbadia, comedian Samay Raina, and other artists from the show for allegedly creating obscene content. Soon after, sitting chief ministers and a debate in a parliamentary standing committee pushed for constitutional restrictions on free speech, keeping in mind the malicious effects of such expression on Indian society. A closer reading of the political reaction and the state machinery’s behaviour towards Allahabadia’s case reveals certain peculiar tendencies of societies where majoritarian forces are potent. Society's popular impulses creep into the institutions of the State and come to be presented as legal truth. This form of proscription of free speech generally arises when the social majority is incapable of accepting certain forms of practice that have historically haunted the institution of the State. The state and its institutions have, from time to time, criminalised certain acts that do not conform to a majoritarian logic. However, within the same realm of law, the State has failed to criminalise other acts of violence which bear significance in preserving majoritarian institutions. Will the Supreme Court’s decision in Aveek Sarkar be a saving grace?In India, several laws govern obscenity when it appears on electronic or digital platforms. Section 294 of the Bharatiya Nyaya Sanhita criminalises the sale, display, or transmission of obscene material, including in electronic form, and Section 67 of the Information Technology Act mirrors the BNS’s definition of obscenity, while prescribing a harsher punishment. .It is not for the State to impose its visions of ideal citizens by curbing what they can see, speak, or hear .Obscenity jurisprudence has undergone a transition over the years - from the infamous five-judge bench decision of the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (1964), where it used the ‘Hicklin test’ to uphold a ban on D.H. Lawrence’s novel ‘Lady Chatterley’s Lover’, to its more recent verdict in Aveek Sarkar v. State of West Bengal (2014), where it adopted the ‘community standards’ test. Contrasted to the more conservative position in Udeshi, The Court ruled in Aveek Sarkar that works should not be judged in isolation but rather as a whole in order to prevent arbitrary conclusions. The crucial outcome of this was that not all potentially offensive material is obscene. .India’s Got Potent: Is the vulgar also the obscene?.India’s jurisprudential history on free speech is marked by two distinct streams. One stream conveys the impression that citizens are prone to violence and cannot be trusted with a great measure of freedom. Thus, for their own good, the State should protect citizens from the malignant influences of speech. Another stream acknowledges citizens as conscientious beings capable of living principled lives, such that rights reinforce the conditions to realise their full potential. Hence, it is not for the State to impose its visions of ideal citizens by curbing what they can see, speak, or hear. In these matters, the Court has, over time, insisted upon a close degree of proximity between speech and disorder.The Supreme Court is set to hear Allahabadia’s plea to quash the multiple pending FIRs against him on Thursday, February 21, 2025. It is to be seen whether it will be able to stand by its own concretely established principles in Aveek Sarkar. .The Allahbadia incident underscores a perceived intent to suppress expressions that do not necessarily align with the majoritarian construction of an ideal society..The State’s complicity in hate speechLost amidst the noise around Allahabadia was a report published by India Hate Lab, a Washington-based organisation, which found a 74% increase in anti-minority hate speech in India in 2024. The report recorded 1000 incidents of hate speech, a third of which were recorded in the run up to India’s general elections. Compared to this, 668 hate speech incidents had been recorded in 2023. .2024 ‘critical year’ for hate speech in India, warns new report.The report underlined that 80% of the hate speech occurred in states ruled by the Bharatiya Janata Party and its allies, with Prime Minister Narendra Modi’s campaign speech in Rajasthan’s Banswara on April 21, 2024, marking an inflection point. Notably, the report also highlighted the ongoing demolition drive conducted by state machinery, particularly targeting Muslims and the row on the Hijab ban in educational institutions in Karnataka when the BJP was in power. While Allahbadia's unpleasant humour continues to foreshadow the country's television screens and public forums, a striking record of hate speech in a democratic country failed to solicit critical political engagement. The Allahbadia incident underscores a perceived intent to suppress expressions that do not necessarily align with the majoritarian construction of an ideal society. On February 14, 2025, the Akhil Bharatiya Hindu Mahasabha, a far-right Hindu majoritarian group proposed a form of parallelly policing 'such elements' by essentially using a reciprocal threat of mutilating Allahabadia. All this signifies that legitimacy accorded through majoritarian endorsement is being institutionalised due to its performative nature and its steady integration into the institutions of the State. .The State'ss position, which is also the position of certain judges, underscores a regressive and patriarchal conception of agency.The question that arises is this: how does one bridge the gap between acts of violence that enjoy legal immunity through public authorisation and individual claims that do not necessarily adhere to majoritarian principles? Unsuspectingly, the recent judgement by the Chhattisgarh High Court which refused to convict a person accused of marital rape provides certain answers. What connects Allahabadia’s case to the marital rape exception?On February 13, 2025, the Court noted that Section 377 of the erstwhile Indian Penal Code (‘IPC’) , which provides punishment for ‘unnatural offences’, was repugnant to Exception 2 of Section 375 of the IPC, also termed the ‘marital rape exception’. The exception permits non-consensual sexual intercourse or acts by a man with his wife, the wife not being under eighteen years of age. In December 2017, the victim provided a dying declaration stating that forceful intercourse by the husband had led to her illness, shortly before succumbing to her injury. .Marital rape exception and unnatural sex: Ghosts of colonialism.In 2022, the Delhi High Court had delivered a split verdict on the constitutionality of the Exception. Justice Rajiv Shakdher found the law unconstitutional, stating that the right to withdraw consent forms the core of women's right to life and liberty. However, Justice Hari Shankar relegated the issue to the legislature noting that “requires consideration of various aspects including social, cultural and legal.” Justice Shankar's argument echoed the State's firm position on the Exception, which views it closely tied to sanctity of the institution of marriage. In the Delhi High Court, the government argued that law, if decriminalised, would be used by ”unhappy wives” to harass husbands. The State'ss position, which is also the position of certain judges, underscores a regressive and patriarchal conception of agency within marriage. Equating ‘consent for marriage’ with ‘consent for sexual intercourse’ automatically undermines bodily autonomy, freedom, and the fundamental right to privacy. If courts continue to permit the revoking of bodily autonomy as a means to preserve the sanctity of marriage, it would be a step towards constitutional chaos. Similar to Allahabdia’s case, the marital rape exception captures profoundly the contestation between agency and the caprice of collective will, with the Court as a final arbiter. The State's logic, which is backed by a majoritarian and populist value system that pushes to preserve marriage, due to its central position in Indian society, provokes fundamental concerns about the 'quality' of the society that these institutions reinforce and their adherence to the Constitution's transformative vision of a democratic polity. .Majoritarian politics and the judiciary’s uneven scrutiny: An interview with Anupama Roy.The Constitution offers a site for self-determination, enabling individuals to realise their potential as free members of the polity. It recognises group rights and individual freedom, balancing their coexistence. While one set of rights seeks to uphold the socio-cultural practices of a community, the other insists on individual autonomy and freedom of choice. The fundamental guiding principle is marked by equality among all individuals and liberty from all structures of domination and discrimination. Therefore, amidst the clash between individual autonomy and collective will, where the constitutional commitment to dismantle discriminatory practices endorsed by social institutions gets disrupted, the agency of the citizens should prevail.A systematic erosion of liberal polityAllahbadia's remarks, expressed in a corner of the internet, trembled both the virtual and physical world equally on issues ranging from morality to free speech and censorship. But the Chhattisgarh High Court's verdict could not solicit a single prime-time discussion or parliamentary debate on marital rape. .Similar to Allahabdia’s case, the marital rape exception captures profoundly the contestation between agency and the caprice of collective will.In 1984, Latvian political theorist Judith Shklar argued that the only defensible meaning of liberalism was a system that could secure the political condition necessary for every adult to exercise the freedom to make as many effective decisions about any aspect of their life without fear or favour as possible. Liberalism's significance is also grounded on the continuous presence of 'fear' that takes the shape of cruelty in our societies. Shklar presents cruelty as society's primary flaw. The hubris of this trait is carried by the social actors to the institutions of the State as well. The outcome is a system where the cruelty of the punishment that is inflicted on an individual or a group does not necessarily match the cruelty of the act concerned. .Munawar Faruqui’s case questions India’s liberal credentials.This is the problem of justice that societies run by majoritarian forces encounter. Both Allahbadia’s case and the Chattiagarh High Court’s decision on marital rape exception show that the State and its institutions have actively endorsed a colonial attitude that assumes Indians are unable to respond to speech in a reasoned and rational manner. At the same time, when social institutions empowered by majoritarian lobbies and impulses perpetuate violence, the State revokes its protectionist stance.The State and its institutions essentially reinforce the appropriation of hierarchies as legal truths.

Beer Biceps, Chhattisgarh HC’s marital rape decision and the making of a crime in Hindu majoritarian India

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