"This is not an exception, it is an exemption. It is in the nature of an immunity and it is my argument that it is purely fictional."
Senior advocate Rebecca John continued her submissions as amicus curiae to the Delhi High Court on the constitutionality of the marital rape exception on Thursday, 20 January, explaining that it was imperative for the constitutional courts to intervene when legal and institutional structures threaten the fundamental rights.
The bench of Justices Rajiv Shakdher and C Hari Shankar is hearing a batch of petitions which argue that Exception 2 to Section 375 of the Indian Penal Code – which says that sexual acts by a husband with his wife is not rape – violates Article 14 (right to equal treatment) and Article 21 (right to life, including dignity and privacy) of the Constitution.
John, one of India's leading criminal law practitioners, has been asked by the judges to assist them with the legal issues involved as an amicus curiae (ie a court-appointed independent expert).
On Wednesday, she had explained the historical background to how the marital rape exception became part of the IPC, and how the concept of consent is paramount to the offence of rape in the main part of Section 375.
Resuming her submissions on Thursday, John briefly took the court through the major amendments to the law on rape which took place after two horrific incidents which led to an outcry: the Mathura custodial rape case of 1972 and the Nirbhaya gang rape and murder in 2012.
The law was amended in 1983 and then again in 2013 to give effect to better understanding of the concepts of consent and recognise the ways in which positions of trust and authority are abused.
The Consequences of the Marital Rape Exception
During a previous hearing, Justice Hari Shankar had mentioned that marriage created certain legal, moral and social rights to an expectation of "meaningful conjugal relations".
John said that this expectation is fair, as long as it is mutual and there is consent. "There can be a unilateral expectation as well and if that is not fulfilled, then the spouse has civil remedies. But when it becomes non-consensual and there is coercion, and causes harm or injury, then that sexual act must become an offence," she told the court.
She then delved into what Exception 2 does, which is to protect sex by a man with his wife despite her saying no. This was where she argued that it was, as the English courts had finally recognised as well, not just an exception, but an exemption. "It is in the nature of an immunity and it is my argument that it is purely fictional."
If the exception is removed, she argued, the court would be doing three things:
Upholding the woman's bodily integrity.
Giving fair play to the second part of the definition of rape in Section 375 (which sets out conditions about consent).
Putting people on notice that this no longer gives you immunity, and that a no by your marital partner must be respected.
In contrast, she then explained what are the consequences of not striking down the exception, and retaining it. "We are not talking about trivial cases, rape by itself is a serious offence," she pointed out, but noted that there many additional complications that ensued from retaining this exception.
She asked whether the court could permit a husband to claim the exception if he suffers from a sexually transmitted disease and the wife comes to know about it and therefore says she does not want to engage in any sexual acts.
If the wife is herself unwell, being forced into regular sexual activity would cause severe harm. Then there are also the repeated instances across the country of husbands gang-raping their wives along with friends; thanks to Exception 2, there was the absurd consequence that the others can be prosecuted for gang-rape, but not the husband.
"The consequences in law if Exception 2 is allowed to remain is that it disregards a wife's right to consent," John said.
She noted that in the landmark right to privacy case, the Supreme Court had held (in Justice DY Chandrachud's plurality opinion there) that "the validity of a law which infringes the fundamental rights has to be tested not with reference to the object of state action but on the basis of its effect on the guarantees of freedom."
As a result, she said the high court didn't just have to look at the wording of Section 375 and the marital rape exception when assessing its impact on Articles 14 and 21, but the consequences of the immunity it granted to married men.
"If the consequence is that a married woman can be subjected to sexual assault without her consent, then Exception 2 has to be viewed as an instrument of oppression."Rebecca John during hearing on 20 January 2022
The Supreme Court on Marriage and Fundamental Rights
Justice Hari Shankar at this point asked whether she was saying that Exception 2 allows a woman to be assaulted without her consent. John replied that the woman's freedom to say no was being affected, and that the exception reinforced ideas of a woman's subordination in marriage – ideas which could no longer be accepted today.
To support this argument, she took the court in some detail through Justice Chandrachud's opinion in the Joseph Shine case, where the Supreme Court struck down Section 497 of the IPC, ie the offence of adultery.
Justice Chandrachud had explained there that the law can preserve stereotypes and legitimise unequal relationships based on discrimination. As a result, "In adjudicating on the rights of women, the Court must not lose sight of the institutions and values which have forced women to a shackled existence so far."
The courts therefore have to ensure that "patriarchal social values and legal norms are not permitted to further obstruct the exercise of constitutional rights by the women of our country."
Like the marital rape exception, the concept of adultery was based on antiquated ideas from the 19th century, that a man was entitled to 'exclusive sexual possession' of his wife, she argued. This is based on an idea which subverts the equality of spouses in a marriage, which, Justice Chandrachud had held could not work within the framework of the Constitution.
John quoted from the judgment where it is said:
"Section 497 treats a woman as but a possession of her spouse. The essential values on which the Constitution is founded – liberty, dignity and equality – cannot allow such a view of marriage. Section 497 suffers from manifest arbitrariness."
The Supreme Court had held in Joseph Shine that sexual autonomy is a core part of the right to dignity of every individual, and a legal provision which curtails for a married woman was antithetical to constitutional values.
"Exception 2 to Section 375 also represents the same antiquated notion of marriage between unequals," John contended, but the apex court in had confirmed that modern marriage "is a union of equals in the eyes of the law."
The marital rape exception was given to us by colonial masters based on a doctrine from 200 years ago, and the colonial masters themselves had judicially discarded this exception in 1991, as John had noted on Wednesday.
Keeping this in mind, she argued that it was actually a duty for the courts to strike down a law like this once it was brought to their notice:
"It becomes imperative for Constitutional Courts to intervene when structures of injustice and persecution, deeply entrenched in patriarchy, destroy constitutional freedom. In doing so, the Court is not adopting a paternalistic approach but is in fact fulfilling its duty to give effect to rights already enshrined in our Constitution."
This is Not Creation of a New Criminal Offence
John then addressed a concern raised by men's rights groups, the Delhi Government and even Justice Hari Shankar, about whether striking down this exception would lead to creation of a new offence, something which even the high courts or Supreme Court are not supposed to do.
However, John argued that striking down the exception did not in any way create a new offence, but was simply the lifting of an immunity or exemption from prosecution.
"What does the exception say? The exception simply decrees that although all the ingredients of the offence are made out, because of marriage, legally it cannot be rape. This is a legal fiction."
The removal of such a legal fiction doesn't create a new criminal law offence, but just says that the existing section would attract within its fold a class of people who earlier weren't.
She noted that this had already been done in relation to minor girls, when the Supreme Court read down Exception 2 in the Independent Thought case in 2017. The text of the exception says that sex by a man with his wife who is older than 15 years of age is not rape. The apex court held that this had to be read as 18 years of age, since the age of consent is 18 and the POCSO Act criminalises sex with anyone under the age of 18.
John read out from Justice Deepak Gupta's opinion in the Independent Thought judgment, where he said:
"... there can be no manner of doubt that by partly striking down Section 375 IPC no new offence is being created. The offence already exists in the main part of section 375 IPC as well as in Section 3 and 5 of POCSO."
Justice Gupta said that the court would only be "removing what was unconstitutional and offensive", echoing what the courts in England had said when striking down the marital rape exception there.
John therefore suggested that the position she was taking, that removing Exception 2 only means that a class of individuals which had legal immunity for a particular offence had now lost it, was supported by Justice Gupta's opinion and the House of Lords in the English case in 1991.
Submissions to Continue on Friday
The amicus will continue her submissions to the high court on Friday at 3 pm. She said she would address the court on existing criminal law provisions which a married woman can rely on, and if these offer her equal recourse in the even of non-consensual sex by her husband.
John also said she felt it was important to speak to the court about concerns about sentencing in cases of rape, as recent amendments have increased the punishment for the offence, which many experts believe actually leads to more acquittals.
Justice Hari Shankar has also asked her to address the court on the following two questions:
If the exception were baked into the main provision, could it still be struck down?
If rape were gender neutral but protected either party if they were married, would this still be unconstitutional?
Justice Shakdher has requested John to give her views to the court how ancillary offences to an act of rape by a husband, whether grievous hurt or perhaps even attempt to commit rape, work in the existing legal regime.
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