Concluding her submissions to the Delhi High Court as amicus curiae on Monday, 24 January, senior advocate Rebecca John explained that while married women had certain legal remedies that could be invoked for domestic abuse (including perhaps sexual violence), these were not a substitute for being able to file a complaint on rape with the authorities.
"[Sections 498A and 304B of the Indian Penal Code, the Dowry Prohibition Act and the Domestic Violence Act] create definitive offences based on their individual ingredients. They were enacted to address very specific vices. They were not enacted to address the offence defined in Section 375."Senior advocate Rebecca John to the Delhi High Court on 24 January
The senior advocate, one of India's leading practitioners of criminal law, had been asked by the bench of Justices Rajiv Shakdher and C Hari Shankar to assist them with the criminal law issues involved in the ongoing case before them challenging the constitutionality of marital rape exception in the IPC.
Over the past few days, she had addressed the court on the antiquated origins of Exception 2 to Section 375 of the IPC, how striking it down would not amount to the creation of a new offence, and why there was no right to forcible sex in a marriage.
On Monday, she responded to one of the key arguments made by the Delhi government and men's rights groups supporting the continuation of the exception.
They had argued that even though married women could not file a complaint against their husbands for the specific offence of rape under the IPC, married women do have other legal remedies if forced into non-consensual sex by their husbands.
According to them, this could be grounds to allege the criminal offence of cruelty under Section 498A of the IPC, or file a civil case for divorce, or for protection under the Domestic Violence Act.
However, Rebecca John argued that these were separate offences, and cannot be equated with the specific offence of rape. Delving into the IPC, she showed how there were offences like theft and dacoity which had common elements to them, but they were distinct offences with different individual ingredients, punishments and intentions.
"These are standalone offences, different in their nuance and ingredients. That is the structure of the penal code. There are no overlapping offences though some ingredients may be common," she explained.
Picking up the offence of Section 498A, which was a key alternative according to the Delhi government and others, she showed how, according the statement of objects and reasons of the amendment which introduced it in 1983, it was meant to deal with "the specific evil of dowry deaths and marital cruelty against women by their husbands or in-laws for the purposes of dowry."
While a case for cruelty could potentially include allegations of sexual violence, this was not expressly included within the definition of cruelty under Section 498A.
"The ingredients of 375 are separate and there is no reason why 498A can be used as a substitute for 375. It can be used in addition, but it is not a substitute," she told the bench.
Even if some women could use these alternate remedies to get some action taken against their husbands, this isn't the same as being able to file a case for rape.
"There could be some elements which are common, some which are not. Therefore, the argument that a wife has equal and efficacious other remedies, I am not in agreement. Because although remedies exist, they operate in distinct spheres."
Court Must Not Allow Formalism to Decide Article 14 Issue
While the focus of her arguments has been on criminal law issues, John also made an important point about the constitutional law considerations for the high court when deciding the validity of the marital rape exception.
The exception has been challenged by the petitioners as a violation of both Article 14 (right to equal treatment under law) and Article 21 (right to life, including privacy and dignity) of the Constitution.
The Article 21 argument is fairly straightforward given that sexual autonomy and consent have been held by the Supreme Court to be part of the right to privacy and dignity. However, the Article 14 issue is a little more complicated, as the other amicus curiae in the case, senior advocate Rajshekhar Rao, had admitted while telling the court why he felt the exception was nonetheless unconstitutional.
This is because the traditional test for determining whether a law violates Article 14 is a two-pronged test that looks at the objective and intent of the law, rather than its effects, when deciding whether it is reasonable:
First, the court sees if a law is treating two categories of people differently, is there an "intelligible differentia" to distinguish the two categories and classify them differently.
Secondly, the court then sees if there is a "rational nexus" between the objectives of the law, and this differential classification and treatment.
Those that support the retention of the exception, claim that this test can be satisfied by the law as it currently stands, since there is an intelligible differentia between sexual relations within a marriage and outside it.
Once that is established, they argue, the courts should not be interfering with a policy decision of the legislature to retain the exception, if the legislature feels this exception is needed to the offence of rape in the IPC in the context of this difference.
However, John reminded the Delhi High Court that the Supreme Court in recent judgments had noted that the Article 14 assessment cannot be reduced to a formalistic approach using this two-pronged test, and had to consider the effects of a law.
In the Navtej Johar case on Section 377 of the IPC, where the apex court decriminalised consensual homosexual acts, Justice DY Chandrachud had warned against a formalistic approach, writing (as John read out in court):
"Equating the content of equality with the reasonableness of a classification on which a law is based advances the cause of legal formalism. The problem with the classification test is that what constitutes a reasonable classification is reduced to a mere formula: the quest for an intelligible differentia and the rational nexus to the object sought to be achieved. In doing so, the test of classification risks elevating form over substance."
Justice Chandrachud held that Article 14 contained a powerful statement of values, "of the substance of equality before the law and the equal protection of laws." This substantive concept is about "ensuring fair treatment of the individual in every aspect of human endeavor and in every facet of human existence."
Thus, as the Supreme Court affirmed in another judgment in 2021, there was a need to go beyond the old two-pronged test, as sticking to it did not further the true meaning of the equality clauses under the Indian Constitution.
This means that the Delhi High Court must consider the effect of the marital rape exception when considering whether Article 14 is violated, not just what Parliament may or may not have thought when refusing to get rid of it, the senior advocate urged.
John wrapped up her by suggesting that a legal provision like the marital rape exception can no longer be constitutional after the trinity of Supreme Court judgments on:
The right to privacy (the Puttaswamy case of 2017),
How marital relations can't ignore a woman's agency (the Joseph Shine case on adultery in 2018); and
How the effects of a law had to be considered when assessing its constitutionality (the Navtej Johar case of 2018).
Delhi Govt Reiterates its Stance in Bizarre Fashion, Central Govt Says it Needs More Time
Advocate Nandita Rao, who appeared for the Delhi government earlier during the hearings, reiterated the position taken by it earlier, albeit in bizarre fashion.
Even though John had clearly said that other criminal law provisions would not be a substitute for filing a rape case even if there were common elements, she first tried to say that the amicus had agreed that women could file cases against husbands forcing them into sex under Section 498A and Section 377 of the IPC.
Rao then made an even more bizarre point – that the Supreme Court judgments cited by John were meant to protect privacy of people, and so should not be used "to bring the government into the bedroom."
[NOTE: It is unclear how judgments on the right to privacy would protect the commission of offences in a private space. For instance, murder in a marital home is still murder, and the right to privacy involves the decisional autonomy to say no to anyone when it comes to a sexual act, including a spouse.]
At the beginning of the hearing, Solicitor General Tushar Mehta once again asked the judges for more time for the central government to formulate its stance as it would need to consult many stakeholders.
According to him, there was no problem with the court waiting for the government's response as "No immediate harm will come to anyone if the law remains in force."
Justice Shakdher nonetheless asked him to try and get a response from the Centre within a week to 10 days, after noting that it was alleged that the retention of the marital rape exception did, in fact, allow abuse, which some of the petitioners and other women around the country would continue to suffer as long as it remained a part of the law.
The bench also rejected requests by various parties looking to intervene in the matter at this late stage, including activist and academic Madhu Kishwar, once a key voice on gender issues in legal issues and civil society.
The court will now hear rejoinders, first from men's rights groups which are party to the case, and then from the petitioners who filed the original case, represented by advocate Karuna Nundy.
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