(By Ankit Acharya, Advocate on Record, Supreme Court of India)
It is difficult to right the wrongs of history. But we can certainly set the course for the future.
Justice D.Y. Chandrachud
Society is dynamic, so is the law and the legal system. What was an offence a few years or decades ago, may not be an offence today because of the evolution of society. The cultures, traditions and norms of the society are not permanent but have an evolving nature. The laws are created and framed based on the norms or traditions that exist in society. It is said that one of the major sources of law is societal norms and traditions. The other major source is the Constitution.
The Constitution of India was adopted in the year 1949 and since then has undergone a fair share of changes/amendments. The Constitution of India under its Part III provides for the Fundamental Rights to the people and citizens of India. The laws made by the Parliament or the Legislative Assemblies have to pass the test of Constitutionalism and hence the policies framed by the Governments should not be violative of the Fundamental Rights. One of the Rights which has recently been recognized as the Fundamental Right, by the Hon’ble Supreme Court of India, is the Right to Privacy. As soon as the Right to Privacy was brought under the ambit of Fundamental Rights it has started expanding into its own subdivisions and outlets and one such of its emerging subset is the act of Marital Rape.
The criminalization of Marital Rape in India has been a highly contentious and controversial topic of debate in recent times. Its reverberating uproar in recent times led to the hashtag #MarriageStrike, which trend went viral on social media. This was so because recently, the Hon’ble Delhi High Court agreed to hear the petitions filed by certain NGOs and individuals challenging the exception to section 375 of the IPC which keeps sexual intercourse by a man with his own wife (wife not being under fifteen years of age) out of the purview of the definition of Rape. The most important ground in the Petition seeking criminalizing Marital Rape is the Right to Privacy and its extended ambit. The present article shall show how Marital Rape has emerged as a diversified field in the law pertaining to the Right to Privacy and how the same is culpable of multiple interpretations amidst various stakeholders affected by it.
Not all the Rights are written or found in the text in the Constitution of India. There are Fundamental Rights that are not mentioned/written in the Constitution but that does not mean that they are not recognized. Several rights, like the right to have a pollution-free environment, right to have a sound sleep, right to education, right to protect one’s reputation etc. are a few of many rights which were not found written in the Constitution but were recognized by the Hon’ble Supreme Court of India to be the Fundamental Rights through various judgments delivered from time to time.
Similarly, the Right to Privacy is not explicitly written in the Constitution, but the same has been recognized by a Bench of 9 Judges of the Hon’ble Apex Court in the famous case of Justice K.S. Puttaswamy and Ors. versus Union of India and Ors.[1] While overruling the long-followed judgments of MP Sharma vs Satish Chandra, District Magistrate, Delhi[2] (MP Sharma Case) and Kharak Singh versus State of Uttar Pradesh[3] (Kharak Singh Case), the Hon’ble Apex Court held that every person has a Right to privacy which is of utmost importance and therefore cannot be intruded or violated.
While discussing privacy as a fundamental right, the Hon’ble Supreme Court observed that privacy has distinct connotations including (i) spatial control; (ii) decisional autonomy; and (iii) informational control. Spatial control denotes the creation of private spaces. Decisional autonomy comprehends intimate personal choices such as those governing reproduction as well as choices expressed in public such as faith or modes of dress. Informational control empowers the individual to use privacy as a shield to retain personal control over information pertaining to the person. The Court also held that privacy recognises the autonomy of the individual and the right of every person to make essential choices.
Justice Chelameswar (one of the nine judges on the Bench) discussed the judgment passed by the US Supreme Court in the case of Griswold et al vs Connecticut and observed that the right to privacy consists of three facets i.e. repose, sanctuary and intimate decision. Each of these facets is so essential for the liberty of human beings that there is no reason to doubt that the right to privacy is part of the liberty guaranteed by our Constitution.
Thus, the Hon’ble Supreme Court while holding that privacy is a part of Fundamental Rights, gave utmost importance to two issues, viz., right to make choices and right to have autonomy over one’s personal decisions and choices. The right to dignity and to lead a dignified life had already been made part of the Fundamental Rights. It is also noteworthy to mention here that a woman’s reproduction choice was considered to be one of the dimensions of the personal liberty enshrined under Article 21 of the Constitution of India by the Hon’ble Supreme Court in the case of Sucheta Srivastava versus Chandigarh Administration[4]. The Bench held that a woman’s right to privacy, dignity and bodily integrity should be respected. The Hon’ble Bench had also held that the reproduction choice also includes the right to refuse to participate in sexual activity. The said judgment was discussed and affirmed in the KS Puttaswamy’s Case.
Moreover, the Hon’ble Supreme Court decriminalized homosexuality in its recent judgment of Navtez Singh Johar and Ors. vs Union of India and Ors.[5] While passing this celebrated judgment, the Hon’ble Supreme Court reiterated that every person has the right to make his or her own choice which affects his or her course of life. The Hon’ble Apex Court reiterated the importance of autonomy of one’s own choices concerning sexual intimacy and emphasized the freedom to choose partners for sexual intimacy.
All these aforementioned judgments and a few others have given rise to another burning issue, i.e., criminalizing Marital Rape. The issue is pending adjudication before the High Court of Delhi. The Petition deals with the act of non-consensual sexual intercourse by a husband with his wife. Such an act is considered to be an act of rape as defined under section 375 under Chapter XVI of the Indian Penal Code which deals with the Offence Affecting the Human Body, but it has an exception, i.e., “Marital Rape”. According to the exception, if a man has sexual intercourse with his wife without her consent or against her will it shall not constitute the offence of Rape. The Hon’ble Supreme Court in the case of Independent Thought versus Union of India[6], held that sexual intercourse with a woman below the age of 18 years without her consent, shall be an offence of rape. Thereby increasing the age from 15 to 18 years as far as consent is concerned.
The challenge to the act of Marital Rape as an exception is not for the first time but it has some recent history attached to it. The JS Verma Committee, which was formed by the Government of India, after the most brutal rape incidence of Nirbhaya that was committed in Delhi, gave a recommendation to do away with this exception. But to date, no change has been made in the said offence except that the Hon’ble Supreme Court has increased the age limit to 18 years which was earlier 15 years. Certain petitions were first filed in the year 2015 but after the Puttaswamy Case, a few more petitions were filed and clubbed with the earlier ones all praying for declaring the exception as unconstitutional which shall bring Marital Rape within the purview of rape under section 375 of the IPC.
One of the most important and major grounds taken in these Petitions is the Right to Privacy which includes the right to make choice, the right to have a dignified life and the right to refuse to perform sexual activities, which are already recognized as part of Fundamental Rights by the Supreme Court of India in earlier judgments. Thus, a golden triangle of Rights consisting of Dignity, autonomy over the choice and refusal to perform sexual activities shall be a decisive factor in deciding if Marital Rape, in India, will be criminalized or not.
In present times, there is a grave need to bring a change in the existing law. It is an accepted fact that women have been a victim of cruelty and torture be it physical, mental or verbal. It is argued that laws are safeguarding the rights of women against sexual assault but striking out the sexual assault by a husband on his wife is unconstitutional as it is against the principles of Equality of Law and also against her right to lead a dignified life enshrined under Article 21. This Right cannot be ignored merely because a woman is married to the accused. The fact of marriage does not guarantee implied consent for sexual intercourse. Sexual intercourse between a husband and his wife requires the consent of both parties. There have been some cases of marital rape but the accused got saved due to the exception to the law of rape that excludes marital rape and the only remedy left with the victim is to file a case of torture or cruelty for which the punishment prescribed is lesser than that provided for the offence of Rape under section 376 of the IPC.
However, the Courts and the Lawmakers are also well aware of and recognize the potential misuse of such a law. Recently, in a meeting convened by the National Commission of Women in Delhi, it was argued by Ms Geeta Luthra, Sr. Advocate that there should be a better investigative process and there must have a stricter burden of proof so that an allegation so grave and serious as that of marital rape is made in a jiffy as result of minor discord and acrimony between a couple.. A better investigation thus can prove to be a vital safeguard. A humungous challenge which thus shall have to be met is the misuse of the law if the offence of Marital Rape is criminalized. The right of married women must not become a tool of harassment for the husbands or their families. According to Data reported by National Crime Records Bureau (NCRB) for the year 2019, the conviction rate in sexual assault cases was around 28% all over the country. It had further reduced in the year 2020. The relevant factors while convicting an accused of a rape case, the circumstantial evidence, the other evidence like DNA test and other scientific evidence, which becomes important in rape cases but may not be the most relevant ones for the Marital Rape cases. The standard of investigation has to be enhanced, the provisions of arrest must not be stricter, the burden of the proof element must be stricter and the mere statement of the victim should not become the sole evidence to convict. Another challenge may be with same-sex marriages and any sexual assault allegations in such a relationship.
Thus, one thing is amply clear from the above discussion that though the Right to Privacy has been recognized as a Fundamental Right recently, it has now become one of the most important rights of all. From the very day of its recognition as a Right, its ambit has already been widened. Though it was a milestone to recognize Privacy as a Fundamental, esp. in today’s wired generation where anything and everything gets publicized on social media within a blink of an eye, we have to realize that this milestone has laid the foundation for so many other milestones to come and one and the most recent one among them is ‘Marital Rape’.
[1] (2017) 10 SCC 1
[2] (1954) SCR 1077
[3] (1964) 1 SCR 332
[4] (2009) 9 SCC 1
[5] (2018) 10 SCC 1
[6] (2017) 10 SCC 800
Mr Ankit Acharya, an Advocate on Record, has been practising law in the Supreme Court of India for around a decade now specialising in the field of criminal law.
With his experience of three generations in the particular field, he played a successful role by providing his services to a student who had the misfortune of mis-clicking, leading him to lose his IITB seat. It’s noteworthy to mention that sir with his wisdom has represented numerous individuals and helped them get justice in the courts of law.
Sir is also a frequent contributor to various academic journals and law-related publications pan-India, providing insights on matters of legal nuances and questions of law that have been plaguing society in the given times. He has also contributed to the growth of students by judging Moot Court Competitions conducted by various varsities of India.
It is our greatest fortune that we have been given such an opportunity to host an article written by such a dignitary.
Praiseworthy article explaining details, implications and effects of the petition.