In India, the history of rape laws began with the enactment of the Indian Penal Code (IPC), in 1860. Since then, there have been several amendments to deter and punish such heinous acts and make India a safer place. However, even after such amendments, the law lacks to address certain crucial issues of marital rape and protection of all genders against an act of rape. In this article, I will be analyzing some issues with the law and the need for a change in the rape laws of India.
“He never even asked for my permission.”, “It makes no difference what I say.” Marital rape does not just induce physical violence on women but also psychological trauma of being raped by someone known, by someone who they thought they could trust because of being in a ‘sacred marital bond’. The non-criminalisation of marital rape in India has resulted in husbands abusing their wives and assuming their consent for sexual activities after marriage. The exemption provided in Section 375 of IPC provides for this implied and irrevocable consent of a wife if she is of the age of 15 and above. India is one of the thirty-six countries in the world that has still not criminalised marital rape. As per NFHS reports, a woman in India is likely to face sexual violence from her husband 17 times more than from others. Exemption 2 of Section 375, is violative of the constitutional provisions. Article 14 of the Constitution of India guarantees equality and equal protection of the law. The exemption creates two classes i.e., married woman and unmarried woman, and provides immunity to men perpetrating an act of rape on their wives. This distinction does not have satisfy the test laid down in Budhan Choudhary v. State of Bihar which states that the classification under Article 14 must have a “reasonable nexus to the objective of the act”. The consequences of rape to a woman, irrespective of their marital status, is not only the same but has an added psychological and financial trauma as compared to rape by a stranger, and hence this exemption is contradictory to the objective of the act. The exception of marital rape is also violative of Article 21 of the Constitution of India, wherein the Supreme Court of India has interpreted Article 21 to include right to privacy, dignity, health, etc. In K.S. Puttaswamy v. Union of India, the Supreme Court has right to make choices relating to intimate relations as being a part of a person’s right to privacy. Further, the courts have stated on multiple occasions that ‘right to life’ includes the ‘right to live with human dignity’. The exemption of marital rape is thus violative of this right as it affects the mental and physical health of a woman and undermines their right to live with dignity. The non-criminalisation of this heinous crime has been passed on from the British era. It perpetuates and legitimised the “Doctrine of Coverture” which merged the identity of women with that of their husband. It furthers patriarchy and the idea that “a woman is a property of man”. There have been several recommendations made for the criminalisation of marital rape in India, by the UN Committee on Elimination of Discrimination Against Women and JS Verma Committee, amongst other. The Covid-19 pandemic has increased the risk on women to suffer from domestic violence with reports of increases in cases of domestic violence by almost 100% in mid-April, 2020, which increases the need for protecting women and criminalising marital rape.
Another issue with the India rape law is the lack of inclusivity of all genders by providing recourse only to women who have been raped by men. There is a need for a gender neutral rape law in India. The 172nd report of the Law Commission of India, in 2000, has recommended that the rape laws in India should be gender neutral. In 2019, KTS Tulsi had also proposed to make rape laws of India gender neutral, not only to men but all other genders as well. However, no amendment has yet taken place. The notion of ‘masculinity’ assumes men to be strong, tough and powerful. Ascribing ‘power’ to a gender reinforces the subjugation of other genders and the non-availability of recourses to men. The violence that takes place on women and even the LGBTQI community in India, is well known. However, due to the notions of patriarchy and masculinity, rape of a man is not really considered when the reality is quite different. In a survey, it was stated that out of 1500 men, 71% of them said that they were abused, out of which 84.9% said that they had not told anyone of these abuses due to shame, confusion, fear and guilt. The POCSO Act is a gender neutral act which criminalises sexual abuse against children of all genders. There is no reason for there to be a distinction in providing protection to male children and adult males. Further, in Navtej Singh Johar v. UOI, even though the court legalised consensual gay sex, there were several questions that remained unanswered, including the loophole present in Section 375, as to whether they would be entitled to be protected against an offence of rape. To ensure gender inclusivity and equality, it is crucial for rape laws to be neutral and the Criminal Amendment Bill of 2019 would take this purpose forward.
According to the Global Gender Gap Report, 2021, India has ranked 140 out of 156 countries, falling by 28 places in just one year. Even though the parameters of this report do not cover rape laws of countries, ensuring protection against such crimes to all genders is needed to empower all genders. The criminalisation of marital rape and gender neutrality of rape laws is a step towards lessening the gender gap and ensuring equality for all, irrespective of their gender as is enshrined in the Constitution of India.
ABOUT THE AUTHOR
Muskan is a final year law student at O.P. Jindal Global University and has a keen interest in the field of gender studies, human rights, and policy issues.