The Debate over Marital Rape
GS Paper – 1, Salient Features of Indian Society, Role of Women, Issues Related to Women.
CONTEXT
- The Delhi High Court is hearing a challenge to the constitutional validity of the ‘marital rape immunity’ provided for in the Indian Penal Code.
- The case has drawn attention to critical issues such as consent, the amount to which the state can interfere with a woman’s sexual liberty, and the need to remove historical biases in the law.
What really is the situation?
- In a series of four petitions, which are being heard by a two-judge Bench consisting of Justices Rajiv Shakder and C Hari Shankar, the legitimacy of the exemption to Section 375 of the Indian Penal Code that deals with rape is being challenged. Besides hearing from the petitioners, which include the All India Democratic Women’s Association, the court will also hear from amicus curiae Raajshekhar Rao and Rebecca John, both of whom are prominent attorneys.
- Rape is defined under Section 375 of the Indian Penal Code, which also outlines seven ideas of consent that, if vitiated, would constitute the crime of rape by a male. The essential exception is as follows:
- “Sexual intercourse or sexual activities by a man with his own wife, provided that the wife is not under the age of eighteen, are not rape.”
- As a result of this exception, a “husband” has the ability to exercise his right to consensual or nonconsensual sex with his “wife” under the supervision of a court of law. Due to the fact that it undermines a woman’s consent because of her married status, this exception is being challenged as being illegal.
What is the purpose of having this provision in place?
Several post-colonial common law nations have recognised the existence of marital rape immunity. It is predicated on two fundamental assumptions:
First, that
- When a woman marries, the presumption is made that she provides her permission to be kept by her husband in perpetuity, and that she is unable to withdraw her consent later on. This concept in colonial-era law has its origins in the outdated notion that a woman is the property of her husband, which was prevalent at the time.
- It is assumed that a woman is duty-bound or legally obliged to fulfil sexual obligations in a marriage since the goal of marriage is reproduction, which is referred to as the EXPECTATION OF SEX. Due to the fact that the husband has a reasonable expectation of sexual relations in a marriage, the rule indicates that a woman cannot refuse to have them.
- It is also critical to understand why the provision has not been outlawed thus far. Prof (Dr) K I Vibhute stated in a 2010 study (‘Rape Within Marriage in India: Revisited’) that the “maintenance of the institution of the family” is what primarily permits the provision to achieve legitimacy. [I]t is important to ensure the survival of family institutions by removing the potential of false, contrived, and motivated allegations of “sexual assault” against “spouse,” as well as the practical procedural issues that would develop in such a court case.
Is there a legislation in the United Kingdom?
By a vote of the House of Lords in 1991, the exemption for marital rape was overturned. Canada (1983), South Africa (1993), and Australia (1981 onwards) are among the countries that have passed legislation criminalising marital rape.
What are the arguments that will be brought before the court?
- The Supreme Court has made it possible to challenge marital rape because of a slew of rulings, including the 2017 Aadhaar decision, which established the right to privacy; the 2017 ruling that declared the practise of instant triple talaq unconstitutional and held that laws cannot be “manifestly arbitrary”; the 2018 ruling that declared IPC Section 377 unconstitutional to the extent that it criminalised homosexuality; the 2018 Sabarimala tehsil ruling
- The right to equality, the right to a life with dignity, the right to personality, the right to sexual and personal autonomy — all essential rights protected by Articles 14, 19, and 21 of the Constitution, respectively — are all at odds with the right to marital rape immunity under the law. To be more specific, the question before the court is whether the law may be used to justify the infringement of these rights and to what end.
- The petitioners have also contended that it establishes an arbitrary distinction between married and unmarried women and, as a result, takes away a married woman’s ability to agree to a sexual activity (as opposed to an unmarried woman).
- They claim that because courts have recognised that consent may be withdrawn even during or in between sexual acts, the premise of “consent in perpetuity” is not legally legitimate. The petitioners have stated that even though there is a reasonable expectation of sex from a sex worker or other domestic partnerships, consent is not irrevocable. They base their argument on the concept of “reasonable expectation of sex.”
- The justices attempted to draw a distinction between sexual relations within a marriage and sexual relations with a sex worker. This difference is founded on the notion that marriage must result in the birth of children. In light of this, it is once again necessary to consider whether the law may delegitimize the sexual consent of women in favour of procreation while yet acknowledging an exception, namely, the right to abortion.
- Another critical question for the court to evaluate will be whether the protection of marriage and family may be a compelling or even legitimate purpose for the state to the point where it can enact legislation that violates basic rights without the consent of the people. The balance of interests test is applied in cases when the state has a genuine or compelling interest in the outcome of the case, such as national security, public health and order, or public health and safety in general.
What is the government’s stand?
- Destabilising Effect on Institution of Marriage:
According to the government, the institution of marriage would be weakened as a result of the disestablishing effect. Until recently, the administration has stated on several times that criminalising marital rape will endanger the institution of marriage and will also infringe on the constitutional right to privacy.
- Misuse of Legal Provisions: There has been an increase in the use of Section 498A of the Indian Penal Code (harassment given to a married woman by her husband and in-laws) and the Protection of Women from Domestic Violence Act, 2005 (the Act).
Criminalizing marital rape might make it a simple weapon for harassing husbands in the future.
The Best Way Forward
- Taking a Multi-Stakeholder Approach: The criminalization of marital rape will undoubtedly serve as a symbolic first step.
- The penalty might be determined by an expert committee made up of medical professionals, family counsellors, judges, and police officers, who would consider a variety of factors such as the couple’s sexual history, physical and psychological harm to the victim, and other factors.
- Advocating for Change: Legislative reform should be accompanied by public awareness campaigns that educate the general public (citizens, police, judges, and medical personnel) on the importance of informed consent, timely medical care and rehabilitation (including vocational rehabilitation), skill development (including job placement), and economic independence for victims.
JANUARY 21 EDITORIAL
Anti-defection law
GS Paper 2: Topics Covered: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.
MAINS Q –
Examine the terms of the Anti-defection legislation. Is it fair to say that this law has mainly failed to achieve its goal? Discuss.
Context:
Last week, Mayawati, the leader of the Bahujan Samaj Party (BSP), asked for a more strict anti-defection law in the wake of a wave of lawmakers switching parties ahead of the Uttar Pradesh assembly election, which will take place next month.
What exactly is the problem?
Politicians abandoning their political party right before elections is not an uncommon occurrence. And every time there are defections, the anti-defection statute comes into play, which penalises individual legislators who move political parties.
The Tenth Schedule of the Indian Constitution has the following significance:
- The anti-defection legislation is one of the most well-known laws .
- It describes the situations under which a legislator’s decision to switch political parties will result in legal action.
- The 52nd Amendment Act made it a part of the United States Constitution.
- It also includes circumstances in which an independent MLA decides to join a political party after the election results are announced.
- The legislation specifies three instances in which a member of Parliament or a member of the Legislative Assembly may change political parties.
These are some examples:
- When a member of the House who was elected on the ticket of a political party “voluntarily” throws up his or her membership in that party or votes in the House against the party’s desires.
- When a lawmaker who ran as an independent candidate and was elected to a legislative seat later joins a political party after being elected.
- In the two examples above, the legislator’s position in the legislature is forfeited when he or she switches (or joins) political parties.
- It has to do with the MPs who have been nominated. If they are nominated, the legislation provides them with six months to join a political party once they are nominated. If they join a political party after that, they risk losing their seat in the House of Commons.
Disqualification-related issues include the following:
- According to the anti-defection statute, the presiding officer of the legislature has the authority to decide whether or not an MP or MLA should be disqualified from serving.
- According to the legislation, there is no time limit within which such a judgement must be taken.
- The Supreme Court ruled last year that anti-defection matters should be determined by Speakers within three months after being filed.
- Legislators, on the other hand, may alter their party affiliation without risking disqualification under specific conditions.
Exceptions:
- When a political party wishes to merge with or into another party, the law enables it to do so as long as at least two-thirds of its lawmakers are in favour of the merger.
- If a member willingly puts up his or her membership in his or her political party after being elected as the presiding officer of the House, he or she will not be barred from serving in that position.
Legal loopholes include the following:
- Those who are against the Anti-Defection Law argue that voters chose people rather than parties in elections, and that as a result, the law is ineffective.
Is it possible for the courts to intervene?
- Certain instances of court intervention in the workings of a legislature have occurred.
- When a five-judge constitutional bench of the Supreme Court ruled in 1992, it said that the anti-defection law procedures before the Speaker are analogous to a tribunal and that they might thus be subjected to judicial review.
- In January 2020, the Supreme Court requested that Parliament modify the Constitution to deprive legislative assembly speakers of the exclusive authority to determine whether or not lawmakers should be disqualified under the anti-defection provision. The Supreme Court’s request was granted.
- Since 2017, disqualification petitions filed against Manipur minister Thounaojam Shyamkumar Singh have been pending before the state’s speaker. In March 2020, the Supreme Court withdrew him from the state government and prohibited him from joining the legislative assembly “until further instructions.”
