The Constitutionality of Section 375 exception (ii) of the Indian Penal Code
The Supreme Court in the case State of Punjab v. Khan Chand has stated “It is the duty of the court to declare a provision of enactment to be unconstitutional if it contravenes any article of the Constitution.” Thereby it becomes clear that “a law can be declared as unconstitutional if “it takes away or abridges any fundamental right or other constitutional provision.”
“Marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.” Even the Supreme Court has now recognized the fact that “constitutionally a female has equal rights as a male and no statute should be interpreted or understood to derogate from this position.” Thus “the Constitution has assigned to the Courts the function of determining as to whether the laws made by the Legislature are in conformity with the provisions of the Constitution. In adjudicating the constitutional validity of statutes, the Courts discharge an obligation which has been imposed upon them by the Constitution. The Courts would be shirking their responsibility if they hesitate to declare the provisions of a statute to be unconstitutional, even though those provisions are found to be violative of the Articles of the Constitution.”
Exception (ii) to section 375 was legislated keeping in mind the patriarchies that was prevalent in the 1800’s and thus in this 21st Century with the change in attitudes, views ; ideas such as “Marital Rape” cannot be continued to be legalized as it violates various fundamental rights guaranteed under various articles hence this exception stands unconstitutional.
1. Exception (ii) to Section 375 of the Indian Penal Code, 1860 is in violation of ARTICLE 14 of the Constitution of India.
“Equal protection means the right to equal treatment in similar circumstances” “both in the privileges conferred and the liabilities imposed by the laws.”
“Doctrine of equality enshrined in Article 14 of the constitution which is the basis of the Rule of Law is the basic feature of the Constitution.” “Right to Equality has been declared by the Supreme Court as the basic feature of the Constitution. Preamble to the constitution of India emphasizes principle of the equality as the basic to the constitution.” “Even the Parliament and State Legislature cannot transgress the principle of equality as enshrined under Article 14.”
Though Article 14 deals with Equality ; Equal protection before law but it does not mean that each and every person shall be treated equally in strict sense and Constitution of India accepts the “principle of legislative classification, where persons may be classified into groups and such groups may be differentially be treated if there is reasonable basis for such difference or distinction” “What is required is that the difference must be real and substantial and must bear some just reasonable relation to the object of the legislation.” “The courts have also pointed out that to consider reasonableness of classification it is necessary to take into account the objective of such classification.”
“When a law is challenged as violative of article 14, it is necessary for the court to first ascertain the policy underlying the statue and the object intended to be achieved by it.”
Exception (ii) to Section 375 classifies rape victims into two categories based upon their marital status i.e. married and unmarried. Section 375 of the Indian Penal Code, 1860 criminalizes the offence of rape ; protects women against forceful and unwanted intercourse which is against her will and consent. Thus section 375 seeks to protect women’s right to bodily autonomy and represents states interest in preserving womanhood, their integrity and honor. However exception (ii) to Section 375 of the Indian Penal Code makes a classification between married and unmarried women by providing immunity to the husband from the offence of rape even when it is performed by him on his wife under coercion and without her consent. Such a classification points out that in a marriage a wife is presumed to give irrevocable consent to sexual intercourse with her husband. What this represents is that a state losses its interest to protect the women against any kind of forceful intercourse with her husband. However such an assumption seems to be irrational and something which is not based on intelligible differentia.
Thus, “it is necessary that there must be a nexus between the basis of the classification and the object of the act under consideration.” Thereby such a classification has no connection with the object of the Statue itself and is moreover contrary to it & deprives a women of her personhood and bodily autonomy & since “reasonableness of classification would depend upon the purpose for which the classification is made.” Thus withdrawing the protection of Section 375 of the IPC from the victims of the crime of rape solely on the basis of their marital status is irrelevant for the purposes of legislation and thus violates the test of classification under Article 14.
2. Exception (ii) to Section 375 of the Indian Penal Code, 1860 is in violation of ARTICLE 21 of the Constitution of India.
“Right to life enshrined in Article 21 means something more than mere survival or animal existence.” It was held by the Supreme Court in the case Maneka Gandhi v. Union of India that “it would include all those aspects of life which go to make a man’s life meaningful, complete and worth living.” Thus there is “an obligation upon the state to preserve the life of every person.”
The Supreme Court in Unni Krishnan v. State of A.P. has stated that “the expression personal liberty is of the widest amplitude and stated several unenumerated rights fall within Article 21.”Exception (ii) to section 375 of the Indian Penal Code deprives a married women the essential right of privacy, choice of reproduction and Right to live a dignified life all of which have been imbibed under Article 21.
2.1 Exception (ii) to Section 375 of the Indian Penal Code, 1860 is in violation of the Right to Privacy
“The Supreme Court has included Right to Privacy in the Right to Life under Article 21.” Privacy may be regarded as a basic right of every human being. Privacy not only involves control over personal information and physical invasion, but also a right to be left alone.” “Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion. Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life.”
Privacy as a right seeks to safeguard individual autonomy and recognizes the ability of an individual of vital aspects of his or her life. Personal choices that govern a person’s way of life are intrinsic to the core of privacy.
The Supreme Court in the case Justice K S Puttaswamy (Retd.) & Anr. v. Union of India & Ors observed “Patriarchal notions still prevail in several societies including our own and are used as a shield to violate core constitutional rights of women based on gender and autonomy. As a result, gender violence is often treated as a matter of “family honour” resulting in the victim of violence suffering twice over – the physical and mental trauma of her dignity being violated and the perception that it has cause an affront to “honour”. Privacy must not be utilised as a cover to conceal and assert patriarchal mindsets.”Also in the case State of Maharashtra v. Madhkar Narayan the Supreme Court held “that every woman was entitled to sexual privacy and it was not open to for any and every person to violate her privacy as an when he wished or pleased.”Also the wife’s body is unqualifiedly her own and she is not bound to yield her body until she feels that she can do so with the full tide of willingness and affection. Thus any act on part of the husband to indulge in sexual activity with his wife forcefully or under coercion must not be given any kind of immunity under the garb of Exception (ii) to section 375 and he must rightfully be called as a “rapist” as it has been observed by the Supreme Court that “We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.” Hence the exception frustrates the Right to privacy of a married women and it goes against the very essence of the right to privacy.
2.2 Exception (ii) to Section 375 of the Indian Penal Code, 1860 is in violation of the Right to Make Reproductive Choices
“Over time, there has been recognition of the need to respect and protect the reproductive rights and reproductive health of a person.”
It is pertinent to note that reproductive autonomy flows directly from right to liberty. The Supreme Court in the case Suchita Srivastava v. Chandigarh Administration held “the right to make a reproductive choice was equated with personal liberty under Article 21 of the Constitution, privacy, dignity and bodily integrity. It is important to recognize that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity.”It is pertinent to note in the above observation that the courts have rightly made no distinction between the rights of a married and unmarried women ; the courts have clearly spelt out that right to reproductive choice must in all situations be respected and a man must respect women’s refusal to take part in a sexual activity irrespective if the women is his wife or not. It was also cited before the Supreme Court in the case Devika Biswas v. Union of India “over time, there has been recognition of need to respect and protect the reproductive health of a person. Reproductive health has been defined as the capability of reproduce and the freedom to make informed, free and responsible decision. It also includes access to a range of reproductive health information, goods, facilities and services to enable individuals to make informed, free and responsible decision about their reproductive behavior.”
Reliance has also been placed on the fact that it is the sacred duty of a wife to please her husband but it was cited before the Supreme Court that “from the study of Hindu Law and different religious books, it cannot be disputed that after marriage, law enjoins the corresponding duty on husband to look after her comforts and not only to provide her food and clothes but to protect her from all calamities and to take care of her health and safety.”
It is important to ensure that reproductive choices are available to all women to ensure that she cannot be treated as a commodity who has no say over her body & who has no right to deny sexual intercourse to her husband.
2.3 Exception (ii) to Section 375 of the Indian Penal Code, 1860 is in violation of Right to Dignity
“Article 21 is a declaration of deep faith & belief in human rights. In this pattern of guarantee woven in Chapter III of this constitution, personal liberty of a man is at the root of Article 21 and each expression used in this article enhances human dignity and values.” “Protection against arbitrary privation of life no longer means mere protection of death, or physical injury, but also an invasion of right to live with human dignity.” The Supreme Court in the case of M. Nagraj v. Union of India clearly held that “Right to life includes right to live with human dignity. It is the duty of the State not only to protect human dignity but to facilitate it by taking positive steps in that direction.”Also now it has been recognized that “human rights for women, including girl child are, therefore, inalienable, integral & indivisible part of the universal human rights” Hence this exception provides an unnecessary and an unlawful protection to every husband to disrobe his wife’s dignity and leave her remediless under the criminal provisions.
Moreover this exception also go against the Fundamental duty i.e. Article 51A (e) enshrined under the constitution of India. “The parliament realized the need for inserting the fundamental duties as a part of the Indian Constitution and required every citizen of India to adhere to these duties. Thus, it will be difficult for any court to exclude from consideration” these duties. Even though these fundamental duties are not justiciable but the supreme court in the case of Rural Litigation and Entitlement Kendra v. State of UP has stated that “the court would also look at the duties while interpreting an equivocal (Uncertain or questionable) statue.”
3. Exception (ii) to Section 375 of the Indian Penal Code, 1860 is in violation of Article 15 of the Constitution of India.
It is well accepted that “the present approach amounts to total gender inequality” ; “article 15 is designed to create an egalitarian society.”
Moreover, Under Article 15(3)”the constitution of India makes specific provision for protective discrimination in favour women, in Article 15(3).”
Hence, “the special provision mentioned in Article 15(3) could not be interpreted to authorize a discrimination against women, first because Article 15(3) did not make use of expression “discrimination against” but uses a different expression “special provision for”. Secondly, the word “for” in the context means “in favour of”. Thus, the intention clearly was to protect the interest of women and children which according to framers of the constitution required protection”
In this regard various provisions have been drafted which solely confers special privileges upon women and are valid like section 497 of the Indian Penal Code which provides that “women shall not be liable as abettor of the offence of adultery” , also section 354 of the Indian Penal Code which protects the modesty only of women ; also “Section 488 of the Criminal Procedure Code which obliges the husband to maintain his wife, but not vice versa”
Thus while the “state could discriminate in favour of women against men, but it could not discriminate against women.” Thereby exception (ii) of section 375 assumes an irrevocable consent of married women with her husband, which leads to women subordination ; provides unreasonable protection to men against marital rape. Hence this provision shakes the very basis ; goes against the spirit of Article 15(3).
4. Exception (ii) to Section 375 of the Indian Penal Code, 1860 is in violation of Article 19(1)(a) of the Constitution of India.
“Right to freedom of speech and expression has been described as the touchstone of individual liberty.” This freedom essentially makes it possible for the people to “exercise their social, economic, political rights in a free society in an informed manner.” What is pertinent here is that “the State is under an obligation to ensure that every citizen of India enjoys freedom of speech and expression which includes freedom to dissent” The Supreme Court in the case Pawan Kumar v. State of Himachal Pradesh has also accepted that “It has to be kept in mind that she has a right to and is entitled to love according to her choice. She has an individual choice which has been legally recognized. It has to be socially respected. No one can compel a woman to love. She has the absolute right to reject.””Moreover a women has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone.” Thus exception (ii) to section 375 by refusing to recognize the right of a married women the right to say “No” which essentially violates her right under article 19(1)(a).
In light of the argument advanced and the authorities cited before this Hon’ble Court it is placed that “right to life concerns the sanctity of human life. The sanctity of human life is probably the most fundamental of the human social values. It is recognized in all civilized societies and their legal systems and by internationally recognized statements of Human Rights” & since “the state is obliged to protect the life of every person and could not shake off its hands on the ground that it is a case of exception.” A women has her own space as a man has. She enjoys as much equality under Article 14 of the constitution as a man does. This concept of “Marital Rape” clearly violates Right to life, right of women under Article 14 of the constitution , Article 15(3) & her right to dissent guaranteed under article19(1)(a) which creates an incurable dent in the rights of the women. Thereby it is placed before this Hon’ble court that the exception (ii) to section 375 of the Indian Penal Code, 1860 is violative of various articles of the constitution which infringes various fundamental rights and duty and hence must be declared unconstitutional.