Beyond the Binary: Demystifying the rape laws in India
A country with a population of seven billion people under the governance of a three tier system, namely the legislature, executive and the judiciary wherein the judiciary is considered to be an independent body and a means and system to serve the ends of justice is not immune to plague, or rather I must say, loopholes. Law is formulated in parliament, goes through daunting procedures and then becomes an act, and judiciary’s role is to enforce the said Act. Now when does the problem arise? The problem doesn’t arise until the law is bend towards woman-centric laws for the protection of the vulnerable sect of sex but the problem arises when, with the evolution of time, the laws remains unmodified. No doubt, judiciary is evolving with the society but there still exist certain archaic laws under IPC, which demand the immediate attention of the legal fraternity, such as Rape Laws.
Rape under the Indian Penal Code, 1860
Rape, the gravest form of offence against humanity, attracting loathing from across all the genders finds no place for other sexes but females. The reason for the exclusion of other sex is simple, men can’t be raped and transgenders are not recognized under that section, yet. Now this is where we fall prey to these loopholes of the colonial-era laws. Rape is defined under Section 375 of Indian Penal Code, 1860, which defines rape as
A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First- Against her will.
Secondly,- Without her consent.
Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under sixteen years of age.
Explanation- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]
The entire definition rest on or rather revolves around will and consent. Will is defined as mere want or desire and consent is always given in expressed terms and never shown in any other fashion
i. The fourth clause
But then there are certain incongruities which exist within the definition. For instance, the fourth clause wherein the definition purports that any man who impersonates to be the husband of the woman and indulges in sexual activity is said to have vitiated the consent in fraudulent fashion since, she was oblivious to this. Now this part is totally redundant since it’s practically impossible for a woman not to recognize her husband in her sane and sober days. Gone were the days when the women were not allowed to see the face of their to-be husband and thus it falls short of any proper legit explanation.
ii. Marital rape-not recognized
The definition of rape includes all forms of sexual offences against woman but marital rape. This is very well evident from Exception 2 to section 375 which clearly exempts unwilling sexual intercourse between husband and wife over fifteen years of age and thus immunizes such acts from prosecution. Now one might question, what’s the difference between a married and an unmarried woman and why such distinction is drawn between both. The general underlying principal behind this notion is the fact that marriages in India are considered sacrosanct, and thus as per laws, a wife is expected to deliver perpetual consent to have sex with her husband after entering into marital relation. Whilst in most of the countries, the unwilling sexual contact is criminalized, India is one of the thirty countries that have still not criminalized marital rape. Both Supreme Court and High Court are currently flooded with plethora of petitions, and in a recent judgment , the Supreme Court criminalized the sexual contacts with a wife between the age of fifteen years to eighteen years. This led to the increase in the number of petition challenging the very constitutionality of Exception 2 and scrapping it off from the book as a whole. Various flabbergasting and appalling explanation to this will blow anyone’s mind, especially when it comes from a legal luminary such as Ram Jethmalani, who was the former union law minister in the Vajpayee government.He told Times of India that he does not think martial rape should be criminalized in India. “If there is trouble within marriage where a husband is accused of forcing himself on his wife, she can leave. Why should the provision of rape be brought into married life?” he asked. Well the same logic would not have applied to an unmarried woman. Not just this, Justice Verma Committee, which was set up after theNirbhaya incident, made recommendation for the criminalization of the marital rape but the same was rejected by the parliamentary standing committee headed by Venkaiah Naidu. “If marital rape is brought under the law, the entire family system will be under great stress and the committee may perhaps be doing more injustice,” says the committee report. Law commission in its 172nd report said that criminalizing marital rape would lead to “excessive interference with the marital relationship”. People rationalize the non-criminalization of marital rape in India by furnishing redundant arguments such as breaking down of marriages which is might be true, but isn’t that something worth rejoicing? Putting an end to a toxic relationship rather than suffering.
iii. Recognizing gender neutral rape laws
We need to rethink and understand that sexual assault does not conform to male-on-female paradigm. Despite expanding the definition of rape under IPC, it still continues to constrict itself to a gender specific notion of rape. It reinforces binary notion of gender and thus results in gross under inclusion of the third gender as well. It is pillared on the state obligation to recognize man as the perpetrator and woman as the victim and this framework is very rigidly fixated. Prominent feminist scholar like Laxmi Murthy acknowledges that “men too can be sexually assaulted by men, as well as by women (in rare cases)” and that women too are capable of perpetrating sexual assault on men”. Such stringent gender specific framework which does not recognize the instances of sexual assault on transgender or on the body of male or where the perpetrator is a transgender or femalewill only lead to transgenders hiding their identity. The issue of the need of gender neutral rape laws was first raised in 1996 by Jaspal Singh of Delhi High Court in Sudesh Jhaku v. KC Jhaku and the judge quoted the passage from an article in California Law Review:
Men who are sexually assaulted should have the same protection as female victims, and women who sexually assault men or other women should be as liable for conviction as conventional rapists. Considering rape as a sexual assault rather than as a special crime against women might do much to place rape law in a healthier perspective and to reduce the mythical elements that have tended to make rape laws a means of reinforcing the status of women as sexual possessions.
But after the nirbhaya incident, the JVC recommended that the offence of rape be retained and not be substituted by offence of sexual assault as it was widely understood as an expression of society’s strong moral condemnation.
iv. Chastity of woman is of utmost importance
The judicial opinion on Indian rape laws rather reflect the traditional mindset borne by the society. For instance in 1980 Krishna Iyer, J opined in Rafiq v State of UP that a woman is ravished in rape, and it does not merely constrict to physical injury but transcends the boundaries of deathless shame. In 1983, MP Thakkar,J reiterated a similar notion in Bharwada v. State of Gujarat, stated that when a woman is raped, she is most likely to be ostracized by the society,by her family, friends and will be overpowered by a feeling of shame and loss of respect. In MP v. Madanlal the Supreme Court laudably despised the idea of compromise but in the same instance stated that the body of a woman is like a temple and these offences suffocates the breath of life and sully the reputation. This all reflects the product based positioning of woman in the society.
Such redundant elements must be done away with in order to achieve a true sense of equality. Doing a favor to one gender and not extending the same rights to the other genders is a clear example of inequality and such discrimination inevitably results in rise in crime against the other community. The laws are supposed to evolve with society and holding onto redundant values and culture to justify the discrimination will do no good to anyone. It is time that we put forth the logical argument and scrape off the colonial-era laws once and for all.
 Indian Penal Code, 1860, Sec 375, No.45, Acts of Parliament, 1860  Marital Rape in India: 36 countries where marital rape is not a crime, India Today, (Mar. 12, 2016, 16:06 IST), https://www.indiatoday.in/education-today/gk-current-affairs/story/marital-rape-312955-2016-03-12  Independent Thought v. Union of India, (2013) 382 SCC (2017) (India).  Neeta Lal, The Definition of ‘Rape’ cannot change with a Marriage Certificate, The Citizen, (29 April 2020 08:45, PM), https://www.thecitizen.in/index.php/en/NewsDetail/index/1/3580/The-Definition-of-Rape-Cannot-Change-with-a-Marriage-Certificate  Partners for Law in Development (PLD), “Comments by Laxmi Murthy to Criminal Law Amendment Bill 2000”,http://pldindia.org/wp-content/uploads/2013/04/Comments-by-Laxmi-Murthy-to-Criminal-Law-Amendment-Bill-2000.pdf>  Sudesh Jhaku v K C Jhaku, (1998) Cri LJ 2428.  LEGRAND, Camille E, “Rape and Rape Laws: Sexism in Society and the Law” (1973) 61(3) California Law Review 919 at 941 CrossRef | Google Scholar  Justice Verma (Retd) Committee, Report of the Committee on Amendments to Criminal Law (New Delhi: Justice Verma (Retd) Committee, 2013)Google Scholar [JVC, Report].  Rafiq v State of UP (1980) 4 SCC 262.  Bharwada Hirjibhai v State of Gujarat (1983) 3 SCC 217.  State of MP v Madanlal, (2015) 7 SCC 681
2nd Year, B.A.LL.B.,
Ram Manohar Lohia National Law University, Lucknow.
(Images used for representational purpose only.)