A Question of Consent: The Delhi High Court’s Split Verdict on the Marital Rape Exception

Today, a division bench of the High Court handed down its judgment on the constitutional challenge to the marital rape exception [“the MRE”]. Put simply, the marital rape exception states that “sexual intercourse by a man with his own wife … is not rape.” Petitioners – supported by amici – argued that the marital rape exception – which, in effect, immunises married men from being prosecuted for rape – violated Articles 14, 15(1), 19(1)(a), and 21 of the Constitution. The two-judge bench delivered a split judgment: Justice Shakder struck down the MRE as unconstitutional on all of the above grounds, while Justice Hari Shankar upheld its constitutionality.

Previously, on this blog, I have analysed the constitutional issues around the MRE in some detail. In this post, I shall argue, first, that the fundamental point of difference between the two judges is on the question of consent. Justice Shakder believes that whether in a marriage or out of it, sexual consent is paramount and inviolable. Justice Hari Shankar – although he denies it from time to time – believes that within a marriage, a woman’s consent to sex carries less weight. Secondly, I shall note that under existing Indian constitutional law, Justice Shakder is correct, and Justice Hari Shankar is wrong. Consequently, when this split judgment goes for resolution before a Full Court (or to the Supreme Court), Justice Shakder’s views ought to be upheld, and the MRE struck down.

The Opinion of Shakder J

The core of Justice Shakder’s argument can be found in paragraph 135.2 of his opinion. Examining s. 375 of the Indian Penal Code in some detail, which sets out the seven circumstances under which a sexual act counts as rape, he observes that:

A close reading of the circumstances would reveal that except for the sixth circumstance (which concerns a girl-child under 18 years of age), willingness (as in the first circumstance) and consent (as in the second to fifth and seventh circumstance)- form the basis of separating acts which are lawful from those which are construed as unlawful. The circumstances are clearly agnostic to the relationship between the offender and the woman victim. [Emphasis supplied]

As Shakder J notes, therefore, the core of the offence of rape is non-consensual sexual intercourse. The MRE creates a “firewall” that protects one class of putative perpetrators – married men – from being prosecuted for this offence, even though the ingredients of the offence are exactly the same. The question then follows: is this distinction constitutional? Shakder J holds that is not, as in essence what it conveys is that “forced sex outside marriage is ‘real rape’ and the same act within marriage is anything else but rape.” (paragraph 137.1) Thus, the MRE “with one stroke deprives nearly one-half of the population of the equal protection of laws.” (paragraph 137.1) This is because:

The immediate deleterious impact of the provisions of MRE is that while an unmarried woman who is the victim of the offence of rape stands protected and/or can take succour by taking recourse to various provisions of the IPC and/ the Code, the same regime does not kick-in if the complainant is a married woman. In this context, one may have regard to the following provisions of the IPC and the Code : Section 228A of the IPC prevents disclosure of the identity of a rape victim except in certain circumstances set out therein. Likewise, Section 26 of the Code provides that the offences concerning rape/aggravated rape shall be tried as far as practicable by a court presided by a woman. Section 53A empowers a medical practitioner to examine, a person charged with committing an offence of rape if he has reasonable grounds for believing that such examination will furnish evidence with regard to the commission of the offence. (paragraph 141)

For these reasons, Shakder J holds that the MRE fails the reasonable classification test of Article 14. He then addresses two counter-arguments: the idea of a “conjugal expectation to sex” and the “preservation of the institution of marriage.” On both issues, his response is grounded in the right to individual autonomy and consent. On the first, he notes that whatever the expectation might be (i.e., “unreasonable” denial of sex counts as a ground for divorce under Indian family law), it does not extend to an “unfettered right to sex” without consent (paragraph 146); on the second, he notes that the marital bond is itself based on the idea of choice, and mutual respect for “physical and mental autonomy” (paragraph 148); once again, therefore, a legal provision predicated upon the denial of consent cannot be saved by appeals to the institution of marriage.

This focus on choice, autonomy, and equality also leads Shakder J to hold that the MRE violates Articles 21, 15(1), and 19(1)(a) of the Constitution. In paragraph 163, he holds that “modern-day marriage is a relationship of equals. The woman by entering into matrimony does not subjugate or subordinate herself to her spouse or give irrevocable consent to sexual intercourse in all circumstances. Consensual sex is at the heart of a healthy and joyful marital relationship.” For this reason, denial to married women the right to trigger prosecution for the violation of sexual consent infringes Articles 21; it also infringes Article 15(1), as it is discrimination based solely on marital status; and it infringes Article 19(1)(a), as “the guarantee of freedom of expression includes a woman’s right to assert her sexual agency and autonomy.” (paragraph 166)

The Opinion of Hari Shankar J

How does the opinion of Hari Shankar J respond to these contentions? This opinion is based on two prongs. First, Hari Shankar J identifies what he believes to be a fundamental flaw in the petitioners’ logic: i.e., that all non-consensual sex is, by default, rape, and that the MRE is an impermissible departure from this default; and secondly, that when it comes to sex, the marital relationship is distinct from all other relationships, in that it carries with it a “legitimate expectation of sex.” This – according to Hari Shankar J – provides the “intelligible differentia” under Article 14, that justifies the legislative decision of treating non-consensual sexual intercourse within marriage as “not rape.”

Let us examine both steps of the argument. On the first step, Hari Shankar J tries to drive his point home by drawing an analogy with the crime of murder. Just like not every instance of taking a life is not deemed under criminal law to be “murder”, therefore – it follows – that not every act of non-consensual sex is deemed “rape”; rather, it is the legislature that decides which kind of non-consensual act is to be deemed “rape”, just as it defines when the taking of life is deemed murder. (paragraph 103)

In this context, Hari Shankar J repeatedly – and rather intemperately – accuses petitioners’ counsel, and the amici, of making arguments devoid of logic, and attempting to substitute the legal definition of “rape” for “what they feel should be the definition of rape.” If there is anything that demonstrates a complete lack of logic, however, it is Hari Shankar J’s choice of analogy. The relationship between the MRE and the offence of rape is not equivalent to the legislature defining the circumstances under which the taking of a life amounts to murder. The correct analogy – as should be immediately evident – is that of the legislature defining the offence of murder in full detail, and then adding – for example – an “MP exception” that goes “the killing of a human being by a member of parliament is not murder.” This is because – and this is the point of Shakder J’s judgment that Hari Shankar J fails to deal with in any sense – s. 375 exhaustively defines the ingredients of the offence of rape (which – as Shakder J correctly notes – involve non-consensual sex in various forms), and then exempt a class of perpetrators from prosecution on no other ground than that they belong to that class.

It is this simple elision that thus allows Hari Shankar J to dodge the issue of consent entirely, and repeatedly insist throughout his judgment that he supports consent, and indeed – incredibly – that this case is not about consent at all. As is immediately obvious, however, this case is all about consent: the entire scheme of s. 375 is designed to define non-consensual sex as rape, and then shield married men from the consequences of that legislative design.

Hari Shankar J then notes that there are a range of provisions in the IPC where the relationship between the parties matters (in a somewhat disturbingly violent analogy, he argues that a father slapping his child is not an offence, but a stranger slapping the same child is (paragraph 134)). This brings us to the second prong of his argument, which is the intelligible differentia. Hari Shankar J argues that the intelligible differential is founded upon the “unique demographics” (paragraph 104). What are these unique demographics? This comes in paragraph 113:

Equally plain, and real, is the fact that the primary distinction, which distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex.

This idea of a “legitimate expectation of sex” comes in repeatedly through the judgment, and is the basis of Hari Shankar J’s finding that the MRE is constitutional. In paragraph 116, he notes that marriage “is the most pristine institution of mankind”, and that the “sexual aspect is but one of the many aspects” upon which the marital bond rests; in paragraph 119, he says that “sex between a wife and a husband is, whether the petitioners seek to acknowledge it or not, sacred.” In paragraph 120, he says that “introducing, into the marital relationship, the possibility of the husband being regarded as the wife’s rapist, if he has, on one or more occasion, sex with her without her consent would, in my view, be completely antithetical to the very institution of marriage, as understood in this country, both in fact and in law.” In paragraph 127, he says that unlike live-in relationships, “the expectation of sex of the husband, with his wife is, therefore, a legitimate expectation, a healthy sexual relationship being integral to the marital bond”; in paragraph 130, he says that “any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, in my view, is not only unjustified, but is ex facie unrealistic.” He then adds that “it cannot even be assumed, in my view, that the perceptions of the petitioners reflect the views of the majority of Indian women.”

It is important to extract these observations in some detail, because they are characteristic of the muddled legal thinking that runs through Hari Shankar J’s opinion as a whole. Even if you take all these observations and assertions to be true (and there are many who would contest them!), what they demonstrate – at their highest – is that sex within marriage is somehow qualitatively different from sex outside marriage, because it forms an integral part of a set of reciprocal rights and obligations that constitute the valuable social institution of marriage.

But even if true, this is entirely besides the point. The only evidence that Hari Shankar J can muster up as evidence in his support is that unreasonable denial of sex can serve as grounds for divorce. That is true, as Shakder J also recognises. But there is a chasm of difference between saying – on the one hand – that the reciprocal social rights and obligations in a marriage create a ground for dissolution of that marriage if they are not discharged by either party, and saying – on the other – that they justify immunising the violation of sexual consent from being prosecuted as it normally is, outside of marriage – i.e., as rape.

Indeed, when you strip away the verbiage, what Hari Shankar J is effectively saying is that marriage not only gives the husband a legitimate expectation of sex, but the further right to violently enforce that expectation without suffering the same consequences as other people suffer. This not only flouts the rule of law, but also flouts basic logic, which appears to be particularly dear to Hari Shankar J.

A quick note on paragraph 130, which I found particularly disturbing. First, there is the assertion that a married woman who is subjected to non-consensual sex (since Hari Shankar J objects to using the word “rape”) will not feel as “outraged” as woman who is raped by a non-married person (whether that person is a stranger, a friend, or an intimate partner). This assertion has no business being in a judicial opinion. Secondly, there is the assertion that “the majority of Indian women do not share the views of the petitioners.” Whether true or not, this is entirely irrelevant, and indeed, a return of the infamous “minuscule minority” view that appeared in Koushal v Naz, was seemingly buried in Navtej Johar, but appears to have infinite lives in the halls of the Court.

It is this extraordinary reasoning that allows Hari Shankar J, to hold in paragraph 165, that:

Plainly read, it is clear that there is nothing in the impugned Exception which obligates a wife to consent to having sex with her husband, wherever he so requests. All that it says is that sexual acts by a husband with his wife are not rape. It does not even obliquely refer to consent, or want of consent.

Once again, we see the absence of logic. It is nobody’s case that the Exception itself “obligates” a wife to consent to sex at all times. The case is that the Exception devalues a wife’s consent purely by virtue of her marital status. Hari Shankar J sets up this straw-man to knock it down in the second sentence – and then, in the third sentence, he comes up with a non-sequitur, noting that not only does the MRE not force a wife into non-consensual sex, but that it has nothing to do with consent at all! It is almost trite at this stage to point out the absence of logic: when s. 375 says that non-consensual sex is rape, and the MRE says that “except where it is a married man”, what the section – read as a whole – says is that non-consensual sex between a married man and a wife is not rape. Repeatedly – and belligerently – stating that all this has nothing to do with consent does not make it true.

The intellectual dodge at the heart of the judgment is finally laid bare in paragraph 169, where Hari Shankar J notes, by way of conclusion, that:

…the legitimate conjugal expectations of the man, as the husband of the woman and the reciprocal obligations of the wife, the peculiar demographics and incidents of marriage, vis-à-vis all other relationships between man and woman, and all other legitimate considerations to which I have already referred, and which justify extending, to sexual intercourse and sexual acts within marriage a treatment different from such acts committed outside the marital sphere.

For the reasons I have explained in some detail, the dodge is simple: it is not enough for Hari Shankar J to show that sex within a marriage is in some way “different” from sex outside of marriage. He has to show that it is different in such a way that justifies diluting a married woman’s consent to sex. He does not show this, because he – incorrectly – attempts to argue that the entire case is not about consent in the first place. And the only way he can show that is by ignoring the actual text of s. 375 altogether – the text that is the starting point of Shakder J’s judgment – and which makes clear that consent is baked into the very ingredients of the offence of rape.

Endnotes

Having deconstructed the fundamental flaws of law – and of logic – that constitute Hari Shankar J’s opinion, it should be obvious that the opinion is unsustainable. In 2022, Indian constitutional law does not support the dilution of sexual consent based on marital status. One does not need to look too far for this: the issue is considered squarely in the Puttaswamy judgment, where Chandrachud J’s plurality opinion is explicit on this point, while many the other judgments make it clear the decisional autonomy is a fundamental facet of the right to privacy, and is not lost or in any other way compromised through social institutions such as marriage. Decisional autonomy within the marriage was also the fundamental basis upon which adultery was decriminalised in Joseph Shine; and sexual autonomy was at the core of Navtej Johar. It is – thankfully – too late in the day to go back on this rather fundamental precept.

Three final points. First, I have not in this post analysed all parts of the two opinions. For example, the two judges differ on whether striking down the MRE would lead to the creation of a new offence. I have analysed this issue in some detail in my previous post, and interested readers may refer to that.

Secondly, as this post shows, I believe that Shakder J’s judgment is opinion, and ought to be upheld on appeal. However, I also believe that the appellate forum needs to do more than that. I believe – and I say this with due consideration – that parts of Hari Shankar J’s opinion have no place in a jurisprudence that is formally committed to the basic idea of individual autonomy, dignity, privacy, and equal concern and respect. These include, for example, the frankly repulsive statement – that occurs on more than one occasion – that a married woman who is raped will “feel” less outraged than an unmarried woman who is raped. Examples can be multiplied; and when this judgment goes on appeal, the least that can be done is a formal expunging of these observations from the record.

And finally, this judgment shows – if anything does – the often Janus-faced character of the courts. We have two opinions – delivered in the same case – that, like ships in the night, sail past each other without even the chance of a conversation, because their premises are so very different. One opinion sees the task of constitutionalism to be interrogating power differences and breaking down social hierarchies, in order to achieve genuine substantive equality and freedom. The other opinion takes upon itself the task of defending and entrenching those hierarchies. I think we don’t see the first face of the courts often enough; but when we do – as in Shakder J’s opinion – it’s a powerful reminder of what constitutionalism, at its best, can be – and do.

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[Disclaimer: The present writer was involved in the initial drafting and hearing of the petitions challenging the MRE. He has not been involved in the case since 2019.]

The Marital Rape Exception Case: Two Constitutional Issues

Oral arguments in the constitutional challenge to the exception to Section 375 of the Indian Penal Code [“the marital rape exception”] are presently being heard before a two-judge bench of the High Court of Delhi. In this post, I will focus on two constitutional questions that have emerged during the course of the hearing: first, is “marriage” – or “marital status” – a valid classification for the determining when sexual assault constitutes rape or not; and secondly, will striking down the marital rape exception amount to “creating a new criminal offence”?

Marital Status as an Unreasonable Classification

To avoid getting sidetracked by superfluous arguments, let us first clarify what the marital rape exception does not say. The marital rape exception [“MRE”] does not say that sexual assault within a marriage will not be an offence at all. Such acts will continue to be punished under other criminal law provisions (for example, Section 498A, or the offence of causing grievous hurt). What the MRE does say is that sexual assault within a marriage is legally not rape, and will not be punished as rape.

Highlighting this distinction is essential, because it appears to have become the basis of an attempted constitutional defence of the MRE. Reconstructing the argument from various bits and pieces, the defence appears to be as follows:

1. As a basic principle, consent to sex is fundamental and paramount.
2. That said, marriage is an institution that brings with it certain reciprocal rights and obligations, one of which is a “legal right to expect reasonable sexual relations” (I use this framing only because it is the exact question that was put Hari Shankar J to the amicus curae, Mr. Rajshekhar Rao, during arguments).
3. Consequently, it is constitutionally justifiable to use marital status as the basis for a graded scale of punishment. While it would not be constitutional to let marital rape go completely unpunished, it is valid for the legislature to punish it differently (and to a lesser degree), given the “legal right to expect reasonable sexual relations” within a marriage.

This argument rests upon the premise that the otherwise sacrosanct right to consent is somehow conditioned within a marriage by the “right to expect reasonable sexual relations”, and may therefore be treated differently, as long as it is not erased altogether. This is the legal version of eating your cake and having it too: “yes, consent is important, but also, rape within marriage is not exactly rape.”

In responding to this argument, it is sufficient to state that as of 2022, and as a matter of law, the proposition that there is a “legal right to expect reasonable sexual relations”, that can in someway qualify or diminish the rule of absolute consent, is quite simply incorrect. To understand why, one must examine a seemingly unrelated branch of law: family law, and – in particular – section 9 of the Hindu Marriage Act. Titled “the restitution of conjugal rights”, this section provides a remedy for a situation in which one spouse has “unreasonably” withdrawn themselves from the company of the other.

The relevance of the restitution of conjugal rights to this case is as follows: it is based on the precise logic that underpinned Hari Shankar J’s question to the amicus. The logic of the restitution of conjugal rights (the provision was originally imported from the 1865 Matrimonial Causes Act in England) is that marriage brings with it a legally enforceable right to “conjugal” (i.e., including sexual) relation, breach of which can be remedied by filing a lawsuit. While, over the years, the actual operation of this provision has been rendered largely toothless (it now serves as a springboard for filing a divorce claim, rather than a trigger for forcing an unwilling spouse into the company of the other), its underlying premise remains constant.

Indeed, this logic was recognised by the Andhra Pradesh High Court in the famous case of T. Sareetha v Venkatasubbaiah. In that case, Justice Chaudary struck down the provision precisely because – in his view – it “transferred the decision of whether or not to have sexual intercourse from the individual to the State.” In particular:

“Sexual expression is so integral to one’s personality that it is impossible to conceive of sexuality on any basis except on the basis of consensual participation of the opposite sexes. No relationship between man and woman is more rested on mutual consent and freewill and is more intimately and personally forged than sexual relationship.”

The argument, therefore, that marital status in any way affected the issue of consent to sex was squarely rejected, and the individual – in this case, the woman’s – right to decisional privacy and dignity was upheld. As is well-known, a year later, Sareetha was overruled by a three-judge bench of the Supreme Court. However, the logic of Sareetha has since been explicitly vindicated in the nine-judge-bench privacy judgment (Puttaswamy v Union of India). A plurality in Puttaswamy specifically noted that:

Yet, it must also be noticed that women have an inviolable interest in privacy. Privacy is the ultimate guarantee against violations caused by programmes not unknown to history, such as state imposed sterilization programmes or mandatory state imposed drug testing for women. The challenge in this area is to enable the state to take the violation of the dignity of women in the domestic sphere seriously while at the same time protecting the privacy entitlements of women grounded in the identity of gender and liberty.

The teaching of Puttaswamy is therefore that far from being diminished in the “domestic sphere”, the right to privacy and decisional autonomy of women attains an even higher salience than it might have in the public sphere. It therefore follows that after Puttaswamy, marital status cannot – by definition – be invoked as a ground to condition or in any way qualify the absolute character of privacy as decisional autonomy (and, thereby, the right to consent). Reading Sareetha and Puttaswamy together, we reach the inescapable conclusion that – under Indian constitutional law – any argument that there exists a “legal right to reasonable sexual relations” which qualifies the character of consent, is untenable. And once this argument falls away, the MRE no longer has a leg to stand on: marital status is entirely irrelevant to the question of forced sex being rape, whether within a marriage or out of it.

This conclusion is buttressed by the judgment of the Supreme Court in Joseph Shine v Union of India (the “adultery case”). In justifying the decision to strike down the criminal prohibition upon adultery, Chandrachud J specifically noted that:

“… Control over women’s sexuality is the key patriarchal assumption that underlies family and marriage … marriage is a significant social institution where this subordination is pronounced, with entrenched structures of patriarchy and romantic paternalism shackling women into a less than equal existence …  Constitutional protections and freedoms permeate every aspect of a citizen’s life – the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned …the enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality.“

It should be noted that these observations are squarely on point, and clarify that – as held in Sareetha and in Puttaswamy – marital status cannot be a ground to differentiate between the nature and character of the right to consent. And if marital status cannot be a ground for that differentiation, the MRE must fall, as that is the distinction upon which it is based.

Would Striking Down the MRE Create a New Offence?

In the previous section, it was established that the MRE violates Articles 14 and 21. Ordinarily, this should be all the reason that is needed to strike it down. A knotty question, however, presents itself: is a Court authorised to strike down a law if it results in the creation of a new criminal offence?

Would striking down the MRE result in the expansion of the scope of criminal law? In a trivial way, yes: hitherto, married men could not be prosecuted for rape. Now they can. A class of individuals who enjoyed legal immunity from criminal prosecution for a specific offence have now lost it. In that very literal sense, yes, the scope of criminal law has been expanded.

However, it is important to parse this further. The MRE exists in criminal law as a specific immunity, for a specific class of people, from being prosecuted for a specific offence. The ingredients of the offence (in this case, rape) have been set out in the substantive part of Section 375 of the IPC. The MRE does not in any way affect that. The MRE does not say, for instance, that “there is always deemed consent to sex within a marriage” (although it could have). The MRE simply decrees that although all the legal elements of rape have been satisfied, if a married man has committed the offence, “it is not rape”. The MRE is legal fiction in its truest sense: it simply takes a class of people outside the ambit of a defined offence, for no reason other than the fact that they belong to that class.

Consequently, all that striking down the MRE will do is to remove the immunity from prosecution for rape from married men (an immunity that, for the reasons discussed above, is founded upon unconstitutional reasons). To take a parallel example, imagine a second exception tacked on to Section 375: “provided that, sexual intercourse by a man who is a registered member of a political party, is not rape.” If this exception is challenged before the Court, can anyone be heard to say that the Court cannot strike it down because to do so “would be to create a new offence”? I believe not; and if the arguments in the previous section are correct, then there is no material difference here between “member of a political party” and “married man”.

It should further be noted that – for the reasons advanced above – striking down the MRE is not going to open up a parade of horribles where every criminal law can be challenged on constitutional grounds, starting with the rape law itself, on the ground that it is not gender neutral and therefore violates the right to equality. There are, of course, many arguments for why rape law should be made gender-netural – and indeed, how it should be made gender neutral, in a way that reflects the realities of patriarchy and institutional power. However, to change rape law in a way that makes it gender neutral would actually require the Court to adjudicate upon questions of legal policy, and – ultimately – to legislate. There is an entire set of legislative models for accomplishing this outcome, and it is not for the Court to fashion or craft legislative models. However, none of these concerns apply to the question of striking down the MRE: the removal of an arbitrary immunity based on marital status has no equivalence with refashioning the criminal law from one understanding of gender and structures of power, to another.

It should be further noted that this does not also mean that every criminal law immunity – or mitigation of punishment – will become vulnerable to challenge, and a marauding judiciary will then jump upon the opportunity to cut back everyone’s criminal law rights. Suppose, for example, that there is a law that says that in a case of damage to property, the fact that an accused was acting upon a genuine belief that she was protecting the environment, will be a mitigating factor in sentencing. A court striking down the MRE will not serve as a justification for striking down this hypothetical law: to do so, it will have to be shown that the political choice that the legislature has made to treat environmentally-motivated crimes in a less serious way, is equivalent to the gender-discriminatory decision that marriage makes consent less salient.

Finally, a quick note: the Supreme Court has already done this. In Independent Thought, the MRE was removed in case the wife was between fifteen and eighteen years of age. This is not to say that Independent Thought controls the outcome in this case; it is, however, precedent for the proposition that Courts can – and should – strike down an arbitrary immunity of this kind.

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Disclosure: I was involved with the drafting of one of the petitions before the High Court in 2017. I have not been formally involved with the case since 2019.

The Supreme Court Decriminalises Adultery

Today, in Joseph Shine v Union of India, a Constitution Bench of the Supreme Court struck down Section 497 of the Indian Penal Code, and decriminalised adultery. As we have discussed before on this blog, this was not a difficult case. The asymmetric nature of the provision – which punishes only the male participant, and that too only on the instance of the husband, and also not if the husband has “consented” or “connived” with respect to the act – is clearly based upon gendered stereotypes that view women as the property of their husbands, and also, as sexually submissive, liable to be “seduced” by men at any moment. Once that fact is clearly understood, there is precious little that can be said to defend the provision under the Constitution.

The four concurring opinions proceed along expected lines. They hold that the asymmetric character of the provision is indeed grounded upon ideas of gender subordination, is therefore “manifestly arbitrary”, and fails the test of Article 14 of the Constitution (and also puts paid to the State’s argument that the provision is necessary for preserving marriages). This would, of course, leave the door open for the legislature to recriminalise adultery through a gender-neutral provision. The Court, however, closes that door as well, noting that criminalisation of what is essentially a private matter – with no broader societal interest – would be an infringement of privacy. These two findings together mean that adultery is gone from the statute books – and will stay gone.

Equality and Non-Discrimination 

In addition to these – expected – lines of reasoning, there are certain interesting aspects on the issues of equality and discrimination in the concurring opinions of Justices Chandrachud and Malhotra, which carry forward the views that they had expressed last month in Navtej Johar v Union of India (the 377 judgment). Justice Chandrachud, for example, reiterates his argument that Article 14 analysis must go beyond the traditional classification test, and focus on substantive disadvantage:

Justness postulates equality. In consonance with constitutional morality, substantive equality is “directed at eliminating individual, institutional and systemic discrimination against disadvantaged groups which effectively undermines their full and equal social, economic, political and cultural participation in society.” To move away from a formalistic notion of equality which disregards social realities, the Court must take into account the impact of the rule or provision in the lives of citizens. The primary enquiry to be undertaken by the Court towards the realisation of substantive equality is to determine whether the provision contributes to the subordination of a disadvantaged group of individuals. (para 38)

It is important that this argument is made not in the context of Article 15(1), but Article 14. Framing Article 14 in the language of disadvantage means that the five groups that are not mentioned in Article 15(1) (sex, race, caste, religion, place of birth), but are nonetheless analogous to those groups by also representing sites of structural or institutional disadvantage (such, as for instance, disabled persons), are entitled to a more searching and rigorous scrutiny under Article 14, than the traditional (deferential) rational classification standard.

Chandrachud J. then goes beyond Article 14, and tests the adultery provision on grounds of Article 15(1) (non-discrimination on the basis of sex) as well. Advancing his Navtej Johar framework of analysis – which combined a contextual  approach to understanding the effect of the law on the one hand, with an interpretation of Article 15 that prohibits distinctions based on class stereotypes on the other – Chandrachud J. finds that the adultery provision discriminates on grounds of sex, as it is founded in stereotypes about women’s sexual agency, and gender roles within the family. As part of this analysis, he makes some important remarks about the public/private divide in constitutionalism: this is because, in order to engage in a stereotype-based analysis of the adultery provision, one must necessarily apply constitutional norms to and within the family structure, normally thought of as part of the “private sphere.” This leads him to make the following important observation:

Control over women’s sexuality is the key patriarchal assumption that underlies family and marriage  In remedying injustices, the Court cannot shy away from delving into the ‘personal’, and as a consequence, the ‘public’. It becomes imperative for us to intervene when structures of injustice and persecution deeply entrenched in patriarchy are destructive of constitutional freedom. But, in adjudicating on the rights of women, the Court is not taking on a paternalistic role and “granting” rights. (paragraphs 51 – 52)

And, subsequently:

It is the duty of this Court to break these stereotypes and promote a society which regards women as equal citizens in all spheres of life- irrespective of whether these spheres may be regarded as ‘public’ or ‘private’ …  While there has been a considerable degree of reform in the formal legal system, there is an aspect of women’s lives where their subordination has historically been considered beyond reproach or remedy. That aspect is the family. Marriage is a significant social institution where this subordination is pronounced, with entrenched structures of patriarchy and romantic paternalism shackling women into a less than equal existence …  Constitutional protections and freedoms permeate every aspect of a citizen’s life – the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny. The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality. (paragraphs 62 – 63, 67).

The interrogation of the public/private divide is, of course, a significant part of the longer-term project of transformative constitutionalism; here, however, it has two immediate implications. By holding that the family structure and the institution of marriage are not immune from constitutional scrutiny, Chandrachud J.’s concurrence casts a shadow over two provisions, both of which have been discussed before on this blog: the marital rape exception under the Indian Penal Code, and restitution of conjugal rights (Section 9 of the Hindu Marriage Act). The defence to the first is invariably the “preservation of the institution of marriage”, while the latter was, actually, upheld on the basis that “cold constitutional law” could not be introduced into the warmth of the home. Both these justifications are now invalid: what Chandrachud J.’s opinion clarifies is that the autonomy of a social institution (whether the institution of marriage, or the home) is always subordinate to individual right to autonomy, exercised within that institution. Or, to put it another way, the Constitution exists to democratise private relationships, breakdown inequalities and hierarchies within those relationships, and ensure individual dignity and freedom not simply against the State, but also against social institutions and structures.

Justice Malhotra also carries forward her reasoning in Navtej Johar. On Article 14, she holds that as the historical foundation of the adultery provision was, indisputably, in the premise that women were chattels, the classification that it draws (between who is aggrieved and who isn’t, and who can sue and who can’t) is vitiated by an illegitimate constitutional purpose. Therefore, while the classification may be intelligible, and there may exist a rational nexus with a goal, that goal itself (in this case, the subordination of women) is ruled out by the Constitution:

Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a “theft‟ of his property, for which he could proceed to prosecute the offender. The said classification is no longer relevant or valid, and cannot withstand the test of Article 14, and hence is liable to be struck down on this ground alone. (paragraph 12.2)

This is an important step forward in centering the “illegitimate purpose” prong of the classification test under Article 14.

One last point: when adultery was upheld in 1954, it was upheld on the basis of Article 15(3) of the Constitution, which allows for “special provisions” to be made for women and children. Not punishing women for adultery was held to be a “special provision” for their benefit. All four opinions make it clear, however, that Article 15(3) cannot be pushed into service where the entire rationale of the law is discriminatory against women. Justice Malhotra articulates the point most clearly:

The true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. A legislation which takes away the rights of women to prosecute cannot be termed as “beneficial legislation.” (para 14)

Treating Article 15(3) as an affirmative action provision (even though the language is broader) is, to my mind, an important step forward in articulating a clear and principles interpretation of this clause. Of course, as the example of President v Hugo shows us, this is not always as easy an enquiry as the adultery case allows. Often, disadvantage and stereotypes are bound up together, because stereotyping is the prelude to disadvantage. When you are trying to remedy disadvantage, then, sometimes you need to take stereotypes as your bases to do so. How the Court negotiates this, of course, is a question for the future.

Two Objections 

Two quibbles. The first is procedural. In 1954, the constitutional validity of the adultery provision was upheld by a five-judge bench. The present bench was bound by that. The Chief Justice and Chandrachud J. are both aware of this, and try to get around it. The Chief Justice argues that that case was on the “narrow point” of Article 15(3), while Chandrachud J. argues that it was on the distinguishable point of the woman not being made an abettor. I am unconvinced. Here is the first line of Yusuf Abdul Aziz:

The question in this case is whether section 497 of the Indian Penal Code contravenes articles 14 and 15 of the Constitution.

 

15(3) or no 15(3), abettor or no abettor, you can’t get clearer than this. The case was about a constitutional challenge to Section 497, and the constitutional challenge was rejected. Maybe there is a case that Article 21 was not raised, and that therefore, a five-judge bench could rule on that. I do think, however, that if Yusuf Abdul Aziz was to be overruled on the grounds of Article 14 and 15, a seven-judge bench needed to be constituted.

Secondly, at one point in his judgment, Nariman J. notes that Hindus never had the concept of divorce, because marriage was considered a sacrament. This is, with respect, historically inaccurate. It is true that among caste Hindus, divorce was an anathema; divorce, however, was frequent and accepted among lower castes, and this is a fact that has been recorded in multiple works of social and cultural history. It does, however, raise some interesting questions about what exactly do we talk about when we talk about transformative constitutionalism. As Karl Klare noted in the famous article that began it all, transformative constitutionalism is not simply about how you interpret the Constitution, but also about how law is taught and discussed. One important part of that is to focus more closely on the sources (both historical and otherwise) that are relied upon in judgments: for example, it is notable that, in a case of gender equality under the Indian Constitution, the first footnote in the Chief Justice’s opinion refers to John Stuart Mill, a British and white man, who lived in the 19th century. Transformative constitutionalism, I feel, must also deepen the sources that it relies upon – otherwise, we’ll still be decriminalising adultery while also making sweeping statements that are both incorrect and result in historical erasure, about the nature of marriage and divorce “among the Hindus.”

Guest Post: Navtej Johar v Union of India – What Remains of Section 377?

(This is a guest post by Vanshaj Jain.

Editor’s Note: The intersection between Sections 375 and 377, which constitutes the principal argument of this essay, has been examined by John Sebastian before the judgment in Navtej Johar, available here).

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That consensual sex between adults lies outside the scope of s.377 is now certain, per Navtej Singh Johar. What remains within the confines of the provision, however, is perilously unclear. To understand the conceptual imprecision that lies at the heart of this decision, it is necessary to understand how the normative content of Section 377 has changed since its ignominious birth.

Sections 375 and 377 were originally intended to cover two mutually exclusive categories of sexual acts. While s.375 covered “sexual intercourse”, s.377 infamously covered “carnal intercourse against the order of nature”. Though these terms were left intentionally imprecise, over time their meaning became conceptually dependant on each other. In Khanu v. Emperor, sexual intercourse was considered intercourse ‘in the order of nature’ with “the possibility of conception of human beings” and carnal intercourse against the order of nature was understood to cover all non-procreative sexual acts. Similarly, in Lohana Vasantlal Devchand, the content of s.377 was defined in opposition to s.375 by describing carnal intercourse against the order of nature as “an imitative act of sexual intercourse”. This bifurcation of sexual acts was cemented by the Supreme Court in Sakshi v. Union of India, where ‘sexual intercourse’ in s.375 was restricted to penile-vaginal penetration, while all residual forms of intercourse (including “penile-oral penetration, penile-anal penetration, finger-vagina, finger-anal penetration and object-vaginal penetration”) were considered carnal intercourse against the order of nature under s.377. Thus defined, the relationship between the two provisions could be conceived as follows:

However, the 2013 Criminal Law (Amendment) Act put an end to the watertight separation between these provisions. Section 375 was altered to include acts that earlier fell only within the domain of s.377, including oral sex, anal sex and penetration by objects. Coupled with these changes, the section ceased to describe the actus reus of rape as ‘sexual intercourse’. In fact, the marital rape exception to s.375 which earlier covered only ‘sexual intercourse’ was specifically amended to except “sexual intercourse or sexual acts”. As Sekhri and Mukhopadhyay argue, this ended the binary separation of ss.375 and 377 under ‘sexual intercourse’ and ‘carnal intercourse against the order of nature’. Indeed, it would be strange if the Amendment Act continued to restrict s.375 to ‘sexual intercourse’ alone since it was based on the Justice Verma Committee Report, which expressly recommended removing s.377 and abolishing the ‘sexual intercourse’/‘carnal intercourse against the order of nature’ division. Consequently, following the 2013 Amendment, the relationship between the provisions could be conceived of as follows:

It is this change in the conceptual interdependence of ss.375 and 377 that the Court seems to gloss over in Navtej Singh Johar. The opinions in Navtej erroneously presume that s.375 is still restricted only to ‘sexual intercourse’ and thus has no potential overlap with the actus reus of s.377. Per Chandrachud J., for instance, the 2013 Amendment shifts non-traditional male-on-female sexual acts [now covered in amended s.375(a)-(d)] from the category of ‘carnal intercourse against the order of nature’ to that of ‘sexual intercourse’. He reasons that:

…if ‘sexual intercourse’ now includes many acts which were covered under Section 377, those acts are clearly not ‘against the order of nature’ anymore. They are, in fact, part of the changed meaning of sexual intercourse itself. This means that much of Section 377 has not only been rendered redundant but that the very word ‘unnatural’ cannot have the meaning that was attributed to it before the 2013 amendment…[m]any of these acts which would have been within the purview of Section 377, stand excluded from criminal liability when they take place in the course of consensual heterosexual contact. Parliament has ruled against them being regarded against the ‘order of nature’, in the context of Section 375. Yet those acts continue to be subject to criminal liability, if two adult men or women were to engage in consensual sexual contact.

This misconception is repeated in the opinions of the other judges, compelling them to believe that the 2013 Amendment implies that consensual non-traditional male-on-female sex is legal because it displaces such acts from s.377 to s.375, the latter having a consent requirement. As is argued above, the language of amended s.375 betrays that this cannot be its effect; instead such acts remain within the meaning of ‘carnal intercourse against the order of nature’ but are to be covered both by s.377 and s.375 (under the phrase “sexual acts” added by the amendment).

Further, to add to the confusion, the judges seem to ascribe the intention of decriminalizing all consensual sex between a man and a woman to the 2013 Amendment. Per Nariman J., for instance:

…the legislature has amended one portion of the law in 2013, making it clear that consensual sex, as described in the amended provision, between two consenting adults, one a man and one a woman, would not be liable for prosecution.

The basis for this conclusion is never made clear in the opinions in Navtej, and cannot be located within the text of the 2013 Amendment Act or the Justice Verma Committee Report. Indeed, it is strange to reason that merely because the actus reus of one provision (here: s.375) is expanded but made contingent on a consent requirement, the implication it carries is that the same act cannot be penalized under any other provision (here: s.377), even if it falls within its definitional parameters. This seems patently incorrect.

The second concern with the manner in which the decision addresses s.377 relates to the phrase ‘carnal intercourse against the order of nature’. The concurring opinions indicate that this phrase lacks clear content:

In the contemporary world where even marriage is now not equated to procreation of children, the question that would arise is whether homosexuality and carnal intercourse between consenting adults of opposite sex can be tagged as ‘against the order of nature‘. It is the freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature. [CJI]

At the very outset, we must understand the problem with the usage of the term ‘order of nature’. What is ‘natural’ and what is ‘unnatural’? And who decides the categorization into these two ostensibly distinct and water-tight compartments? The simple question which we need to ask ourselves is whether liberty and equality can be made to depend on such vagueness of expression and indeterminacy of content…[i]f it is difficult to locate any intelligible differentia between indeterminate terms such as ‘natural’ and ‘unnatural’, then it is even more problematic to say that a classification between individuals who supposedly engage in ‘natural’ intercourse and those who engage in ‘carnal intercourse against the order of nature’ can be legally valid. [Chandrachud J.]

…the phrase “carnal intercourse against the order of nature” in Section 377 as a determining principle in a penal provision, is too open-ended” [Malhotra J.]

While the reasoning is unimpeachable, the judges don’t seem to fully appreciate its consequence. The phrase ‘carnal intercourse against the order of nature’ forms the crux of s.377; it is the actus reus on which the crime is based. If its content is unclear, as the judges rightly point out, only two consequences can follow: either the Court provides a clear guiding principle to determine the content of this phrase for future use or it strikes down the entire provision for vagueness. Troublingly, the Court does neither.

Instead, the Court reformulates the content of s.377 as follows:

“However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under 
Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC.” [CJI]

 

The phrase “act of the description covered under Section 377” could, reasonably, only refer to ‘carnal intercourse against the order of nature’. Yet, by virtue of the pronouncements highlighted above, this phrase no longer carries any positive content, since the Court has, in no uncertain terms, departed from the tests laid down in Khanu and Lohana Devchand, without providing a new test of their own. This renders the residual content of s.377 uncertain. It could, potentially, be conceived of in three possible ways:

Option A is the only one consistent with the Court’s statements on the unintelligibility of ‘carnal intercourse against the order of nature’. By undermining this phrase, it is conceivable that the Court wishes to put the divide between ‘sexual intercourse’ and ‘carnal intercourse against the order of nature’ to rest once and for all. Consequently, s.377 could be used to cover all non-consensual acts of sex (in addition to bestiality and paedophilia) that are not already covered by s.375 – this reinterpretation could raise the interesting possibility that marital rape and female-on-male rape are now subject to penal liability under s.377.

Option B indicates that s.375 and s.377 are not watertight categories; whereas s.375 criminalizes non-consensual male-on-female sexual intercourse and carnal intercourse (“sexual acts”), s.377 covers all remaining forms of non-consensual carnal intercourse. While this option best reflects the text of the 2013 Criminal Law (Amendment) Act, it isn’t consistent with the court’s reasoning on the 375-377 relationship. Option C allows for ss.375 and 377 to retain their independent character, the former applying only to ‘sexual intercourse’ while the latter covers only ‘carnal intercourse’, and best reflects the court’s description of their interaction. However, given the Court’s twin reasoning, first, on the unintelligibility of ‘carnal intercourse against the order of nature’ and its clear dicta that non-traditional forms of sex are not ‘unnatural’, and second, that the 2013 Amendment Act has shifted non-traditional forms of sex from ‘carnal intercourse’ to ‘sexual intercourse’, it is possible that, both under Options B and C, s.377 could no longer be used to cover non-traditional intercourse when done non-consensually, rendering the provision redundant (outside the context of bestiality and paedophilia). This would also have the bizarre outcome that even though male-on-male rape was criminalised earlier under s.377, by virtue of this decision it now carries no sanction (due to the gendered nature of s.375’s text). However, if the phrase ‘carnal intercourse’ does have any residual content, this would again raise the possibility, under Option B, of trying marital rape and female-on-male rape (when it entails such carnal intercourse) under s.377.

In conclusion, the normative content of s.377 is uncertain, and will, in all likelihood, require further clarification. What is clear, however, is that the judgment unfortunately glosses over the conceptual boundaries of a criminal law provision whose content it was called upon to decide.

Addendum: The Impact of the S. 2(q) Judgment upon the Marital Rape Exception

Previously on this blog, we have discussed the marital rape exception under the Indian Penal Code. Recall that Section 375 of the Indian Penal Code sets out the ingredients of the offence of rape. Exception 2 to Section 375 states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” I had argued earlier that Exception 2 creates two classes of women – married and unmarried (for the moment, let us ignore the intermediate category of separated women, who fall within S. 376B of the IPC), and accords unequal protection of law to these classes. It does likewise with men, and consequently, infringes Article 14 of the Constitution.

The objection to this line of argument is as follows: the effect of striking down Exception 2 would be to create a new offence altogether: the offence of marital rape. This is, in essence, a legislative task. Consequently, a Court, exercising judicial functions, will be overstepping its jurisdiction if it legislates a new crime.

How persuasive you find this objection depends upon whether you read Exception 2 as classifying acts or classifying persons (a distinction made notorious, of course, in Koushal vs Naz). Yesterday, however, we discussed the judgment of the Supreme Court in Hiral P. Harsora vs Kusum Narottamdas Harsora, where Justice Nariman, writing for a two-judge bench, struck down S. 2(q) of the Domestic Violence Act on the ground of an Article 14 violation. In my view the Court, in Hiralal P. Harsora, did precisely what it would need to do to strike down the marital rape exception. Recall that S. 2(q) of the DV Act stated:

“….“respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act.

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.”

Just like the marital rape exception, S. 2(q) effectively stipulated that acts of “domestic violence” (defined in S. 3 of the Act) would not fall within the DV Act if they were committed by female and/or persons (who were not relatives of a husband or male partner). The Court reasoned that this classification bore no rational relation with the purpose of the Act, which was to protect women from domestic violence “of all kinds”. The effect of the Court’s judgment was to widen the ambit of the DV Act by ensuring that henceforth females who committed domestic violence could be proceeded against under the Act. Or, if you want to put it another way, the Court legislated a new offence (albeit not a criminal offence): commission of domestic violence by females (who are part of a domestic relationship). Transposing this logic to the marital rape exception the argument is straightforward: the marital rape exception stipulates that husbands who commit rape do not fall within the ambit of S. 375 IPC. This classification bears no rational relation with the purpose of the Section or the IPC (i.e, to prevent and punish crime). The effect of striking down the Exception will be to widen the ambit of S. 375 by ensuring that henceforth husbands who commit rape can be proceeded against under S. 375. This might amount to “legislating a new offence” – but the Court just did that last week.

An immediate objection may be raised: S. 2(q) of the DV Act was part of the definitional section, while S. 375 IPC stipulates the ingredients of the crime of rape. The two are not equivalent, therefore, and it is only in the latter case that constitutional invalidity would result in legislating a new offence. In my view, however, the distinction is only a semantic one. As described above, what the Court is doing in the two cases is the same thing, and the result is the same. In both cases, two things are happening: an act that was not previously an offence is now an offence (commission of domestic violence by females and commission of rape by husbands); and a class of persons that were previously exempted from liability for committing the same act (females committing domestic violence and husbands committing rape). The basis is also the same: the two enactments tackle a certain kind of offence (domestic violence, rape), and consciously leave out a class of persons from liability, even though that class of persons might – in the non-legal sense – commit exactly that offence. Whether this is done through the definitional section or the ingredients section is a question of legal form, and not relevant to an Article 14 enquiry.

However, at this stage, a further objection may be made: the previous argument only deals with the act that constitutes the offence. S. 375, however, does not merely punish sexual intercourse, but punishes sexual intercourse without consent. The marital rape exception is based upon the premise that within marriage, spousal consent to sexual intercourse is presumed. Whatever the validity of this assumption, it is open to the legislature to make it; more importantly, if this is the basis of Exception 2, then it takes the provision out of the ambit of Article 14 altogether, and also dispenses with Hiralal P. Harsora as precedent.

It is no doubt true that the underlying assumption of Exception 2 is the doctrine of presumed consent within marriage. However, that is not what the Exception says. Had the Exception stated that “Sexual intercourse by a man with his own wife is deemed to be with her consent“, then it would have been a different matter.

It might be objected, however, that this is precisely the semantic distinction that we have argued against above. Section 375 is entirely about the question of consent. Consent is built into the definitional clauses. Consequently, the only reasonable way to read Exception 2 is to read it as stipulating deemed consent.

Such a reading, however, would put Exception 2 at odds with the rest of the IPC. Consider Section 87 of the IPC:

“Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.”

Now, while Exception 2 states that marital rape is not “rape”, legally defined, it does not exempt marital rape from falling within other sections of the IPC. Prima facie, marital rape could constitute hurt (S. 319), wrongful restraint (S. 339), use of criminal force (S. 350), and sexual harassment (S. 354A). Now, under the doctrine of presumed consent, none of these offences could apply to sexual intercourse between husband and wife, since Section 87 would kick in. Consequently, there ought to have been a marital exception – along the lines of Exception 2 to Section 375 – for each of these provisions. However, there isn’t. Consequently, the doctrine of presumed consent cannot be taken to be the only explanation for the marital rape exception.

In fact, the explanation that is most commonly given – and which was invoked during the recent public debates on marital rape – is that the Exception is necessary in the interests of family unity and integrity. Whatever one may think about the merits of this answer, and the further argument that it family unity is a legitimate legislative purpose under Article 14, it is important to note that this argument is also excluded by Hiralal P. Harsora, since Justice Nariman, in that case, clearly derived the legislative purpose from the statement of objects and reasons and preamble of the DV Act, and did not engage in a roving enquiry about other possibly justified purposes. Under this framework, it is immediately clear that family unity is no part of the legislative purpose underlying the IPC as a whole, or Chapter XVI (“offences affecting the human body”), or even S. 375. The IPC is a criminal statute, and its purpose is the prevention, detection, deterrence, and punishment of crimes. And it is impossible to conceive of a defence of the classification drawn by the marital rape exception that bears a rational relation to these goals.

Consequently, I would argue that the reasoning in Hiralal P. Harsora, if applied consistently, leaves the Supreme Court with no other option but to strike down the marital rape exception as unconstitutional, if and when a challenge was brought before it.

T. Sareetha vs T. Venkata Subbaiah: Remembering a Revolutionary Decision

On July 1, 1983, Justice P.A. Choudary of the Andhra Pradesh High Court struck down Section 9 of the Hindu Marriage Act, which allowed the Court to pass an order for ‘restitution of conjugal rights.’ In simple language, if the Court was convinced that either a husband or a wife had ‘without reasonable cause, withdrawn from the society‘ of their spouse, then it could decree that the defaulting spouse was required to go back to the company of their partner – a decree that could be enforced by attaching the defaulter’s property. Justice Choudary held that Section 9 violated the rights to equality and privacy under the Constitution, and was accordingly void. Within five months, the Delhi High Court handed down a judgment disagreeing with this conclusion. And a little over a year later, the Supreme Court affirmed the judgment of the Delhi High Court, bringing the legal controversy to a close.

Sareetha remains as a footnote in family law courses, a passing reference in discussions about the restitution of conjugal rights. This is a pity. Sareetha was one of those rare cases in Indian constitutional history where a Court understood the Constitution as a radically transformative document, and struck out in a direction that was unfamiliar, bold, and creative – while remaining constitutionally tethered. Its interpretations of equality and privacy anticipated similar developments in other jurisdictions by years, or decades; and in some respects, it is still ahead of the time. Quite apart from the actual decision, it is its reasoning that constitutional lawyers should not forget; because even though the Supreme Court overruled the judgment, and perhaps closed off the window to a certain kind of legal change, Sareetha’s reasoning remains a template for other cases that might attempt to shape equality and privacy in an emancipatory and progressive direction.

Polis and Oikos: The Privacy of the Ancients

To understand the radicalism of Sareetha, we need to begin at the beginning. The distinction between the public and the private sphere, which is one of the most controversial issues today, and which was at the heart of Sareetha, had its origins in classical Athens.  As Don Slater writes, “The public sphere – the polis or res publica – was the realm of free association between citizens. Men [and only men] were deemed free in the polis not because it was unregulated, but because it was kept rigidly separated from the private sphere of the household and the domestic economy (oikos): the domestic sphere was regarded as the realm of mere physical reproduction, and therefore of the compulsion and slavery of needs.” In her book, The Human Condition, Hannah Arendt records that the public sphere (which Humphrey’s defines by its ‘impersonality’) was the arena of “equals” – men, who came together to debate and discuss issues affecting their City-State were neither “to rule, nor to be ruled.” In fact, the very idea of ‘rule’ was at odds with the idea of the polis. In the oikos, on the other hand, the male head of the household had absolute dominion over his slaves, the women, and the minor children. It was these who would ensure the satisfaction of his bodily needs, thus liberating him from ‘necessity’, and freeing him to participate in the public sphere with other, equally situated men.

The public/private divide, therefore, mapped on to the dichotomy between freedom and necessity, equality and inequality. The claims of equality were restricted to the public sphere (polis), and simply weren’t applicable to the household (oikos), which was defined by its inequality.

Public and Private: The Privacy of the Moderns

The public/private divide largely disappeared during feudal times (the manorial households, in a sense, came to embody characteristics of both spheres), and then made a reappearance after the Enlightenment and the revolutionary era. The modern era – Arendt argues – saw economic activities and market transactions taken out of the domain of the private sphere, which was now defined as the site of intimacy, or intimate relationships. At this time, as Seyla Benhabib records, the American and French Revolutions had brought into public consciousness the ideas of basic rights, and the idea of autonomy. Quoting the philosopher Lawrence Stone, she observes that:

“… from the beginning there were tensions between the continuing patriarchal authority of the father in the bourgeois family and developing conceptions of equality and consent in the political world. As the male bourgeois citizen was battling for his rights to autonomy in the religious and economic spheres against the absolutist state, his relations in the household were defined by nonconsensual, nonegalitarian assumptions. Questions of justice were from the beginning restricted to the ‘public sphere’, whereas the private sphere was considered outside the realm of justice.”

Unlike the Ancients, who accepted that the private sphere was essentially inegalitarian, the moderns held that it was simply not subject to the claims of equality. Benhabib further points out that “power relations in the ‘intimate sphere’ have been treated as though they did not even exist.” It is this idea of privacy that culminated in judicial holdings in the 20th century that viewed privacy as a question of a space of seclusion, a space that the State could not enter. After Warren and Brandeis wrote their famous article at the end of the 19th century, viewing the right to privacy as a right to seclusion, or a right to be let alone, the American Supreme Court held that the right extended to “areas” where there was a “reasonable expectation of privacy.”

It was this spatial concept of privacy that was strongly criticised by feminist legal scholars over the second half of the 20th  century. In light of the fact that the “private sphere” is itself a hierarchically structured space, Martha Nussbaum points out that “recognizing a sphere of seclusion into which the state shall not enter means that males may exercise unconstrained power.” A classic example of this is the marital rape exception which deems that forcible sexual intercourse within the marital relationship does not amount to rape.

Community and Individual: Privacy in Colonial India

In colonial India of the late nineteenth century, where – in the words of historian Tanika Sarkar, there first began to emerge a “pre-history of rights“, privacy took on yet another form: here, it became the right of communities to determine certain issues – including the treatment of women – free from the interference of the colonial State. Tanika Sarkar, Lata Mani, Partha Chatterjee, and other scholars recount the debates around the abolition of Sati, the raising of the Age of Consent, and indeed, on restitution of conjugal rights. Chatterjee notes, for instance, that “the so-called women’s question in the agenda of Indian social reform in the early 19th century was not so much about the specific condition of women as it was about the political encounter between a colonial state and the supposed “tradition” of a conquered people.” In other words, community “traditions”, which centrally involved the rights, positions, and social roles of women, were deemed to be off limits, since they came to represent, or embody, the “inner life” of the community. So the idea of privacy (although it was not framed in so many words) became connected with group rights; or, it was groups that – as bearers of value in themselves – that became the holders of something like a right to privacy.

The Ambiguity of Gobind v State of MP

Therefore, when the Indian Supreme Court began to take up issues relating to the right to privacy, it was adjudicating in the context of a number of different – although somewhat complementary – traditions. The case that first held that there existed a constitutional right to privacy in India reflected this problem. In Gobind v State of MP,  the Supreme Court held, in sphinx-like tones, that:

“Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing.”

As I have noted before, part of the reason why this definition sounds confusing is that it was lifted by the Supreme Court from an American decision delivered in an entirely different context – that of adult theatres. In any event, a quick reading of this sentence reveals at least four possible underlying themes:

(a) A spatial idea of privacy, flowing from the use of the word “home”, and the fact that all the terms that follow it refer to activities normally undertaken within the home

(b) An institutional, or relational idea of privacy: the home (in the sense of a household), the family, marriage, and motherhood are all social institutions. The right to privacy, then, protects the sanctity of these institutions by insulating them against State interference.

(c) A functional idea of privacy: motherhood, procreation, and child-rearing, in particular, seem to suggest domestic activities (and the absence of ‘fatherhood’, in turn, suggests the gendered nature of the division).

(d) An individualistic idea of privacy that focuses upon bodily integrity and decisional autonomy: a few years before Gobind, the American Supreme Court in Griswold v Connecticut and Roe v Wade  had upheld the right to contraceptives and the right to abortion, on grounds of privacy; privacy, here, refers to the right of the individual to make her own choices about decisions that directly affect her bodily integrity.

As we can see, while the first three interpretations reflect the various conceptions of privacy discussed above, the fourth marks something of a break. In Sareetha, the Justice Choudary would take this fourth idea, and use it to develop a transformative vision of privacy.

Sareetha; Reasoning and Outcome

A. Privacy as Individual Dignity

Justice Choudary held that “a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and the mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of such a person.” According to him, at the heart of the issue was the fact that the law, essentially, was a law compelling sexual intercourse. “The consequences of the enforcement of such a decree”, he observed, “are firstly to transfer the choice to have or not to have marital intercourse to the State from the concerned individual and secondly, to surrender the choice of the individual to allow or not to allow one’s body to be used as a vehicle for another human being’s creation to the State.” 

Notice, however, that the law itself does not require sexual intercourse. It only authorises a decree for cohabitation, which can be enforced through attachment of property. This is why Justice Choudary spoke of the consequences of enforcing a decree – and it is here that we see the first major break with traditional conceptions of privacy. Because Justice Choudary was not content simply to end his enquiry at the point of cohabitation – but to go further, to find that given the deeply unequal structure of the family, and given the myriad pressures – not simply physical, but of every other kind – that could be brought to bear upon a woman who is shorn from the protection of her own family, a decree for cohabitation would, in all likelihood, lead to compelled intercourse. Taking the example of a Madhya Pradesh High Court decision where a woman called Tarabai was required by decree to go back to her husband, Justice Choudary observed that “what could have happened to Tarabai thereafter may well be left to the reader’s imagination.” This, for him, was completely unacceptable, because:

“Sexual expression is so integral to one’s personality that it is impossible to conceive of sexuality on any basis except on the basis of consensual participation of the opposite sexes. No relationship between man and woman is more rested on mutual consent and freewill and is more intimately and personally forged than sexual relationship.”

And for a women, who would be the one to conceive, “in a matter which is so intimately concerns her body and which is so vital for her life, a decree of restitution of conjugal rights totally excludes her.” Here, for the first time, we see a vision of privacy that focusses upon a combination of bodily integrity and decisional autonomy. Soon afterwards, Justice Choudary cited Gobind, and then focused on one particular line in Gobind:

“There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior.”

Latching upon the concept of privacy-dignity (and dignity, it will be noticed, speaks to the individual), Justice Choudary then noted “any plausible definition of right to privacy is bound to take human body as its first and most basic reference for control over personal identity… [the] right to privacy belongs to a person as an individual and, is not lost by marital association.”

This is a crucial observation, since it completely rejects the view that the site of privacy claims are social institutions, such as the marriage or the family, and accepts, instead, the opposite claim that the right-bearer is the individual. Privacy, therefore, is to be understood not as an exalted space within which the State cannot enter (no matter what happens within that space), but as a right accorded to each individual, which guarantees her autonomy in all fundamental decisions concerning her body.

B. Justice Brandeis and the Balance of Power

Interestingly, during the course of his argument, Justice Choudary also referred to Justice Brandeis’ dissenting opinion in the case of Olmstead vs New York.  Olmstead was a 1928 American Supreme Court decision concerning the admissibility of evidence obtained through a wiretap. The majority held that the wiretap did not offend the Fourth Amendment, which was limited to  prohibiting illegal searches of “persons, houses, papers, and effects”. Justice Brandeis, however, refused to read the Fourth Amendment in such a literal way. He observed:

“When the Fourth and Fifth Amendments were adopted, “the form that evil had theretofore taken” had been necessarily simple. Force and violence were then the only means known to man by which a Government could directly effect self-incrimination. It could compel the individual to testify — a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life — a seizure effected, if need be, by breaking and entry. Protection against such invasion of “the sanctities of a man’s home and the privacies of life” was provided in the Fourth and Fifth Amendments by specific language. But “time works changes, brings into existence new conditions and purposes.” Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”

Justice Brandeis’ basic point was that as invasive State technologies increase in scope and reach, the law must correspondingly evolve to continue effectively protecting the individual. Underlying this is the idea that there must, at all times, remain a balance of power between State and individual. The more power the State acquires, the further must the law reach to constrain its use, lest we arrive at a totalitarian society in which State power has completely overwhelmed the individual.

The innovation in Sareetha is that it takes Brandeis’ idea of a parity of power between individual and State, and extends that to apply horizontally, in the private realm. The link between cohabitation and compelled intercourse is based upon a difference in power: and Sareetha’s striking down of S. 9 is a Brandeisian attempt to restore the balance. In a truly radical fashion, therefore, Justice Choudary’s attempt was to bring about – in the smallest of ways possible – a democratisation of the private sphere.

C. Article 14 and Indirect Discrimination

Justice Choudary’s last argument was with respect to Article 14. Section 9, of course, was facially neutral: the remedy, in theory, was open to both husbands and wives. But, Justice Choudary held, ” “Bare equality of treatment regardless of the inequality of realities   is neither justice   nor homage to the constitutional principle”… the question is how this remedy works in life terms In our  social reality, this matrimonial remedy   is found used almost exclusively by the husband  and is rarely resorted to by the   wife. A passage in Gupte’s Hindu law in British India’ page 929 (second edition) attests to this   fact…  the reason for this mainly lies in the fact of the differences between the man and the woman. By enforcing a decree for restitution of conjugal rights the life pattern of the wife is likely to be altered irretrievable whereas the husband’s can remain almost as it was before this is so because it is the wife who has to beget and bear a child. This practical but the inevitable consequence of the enforcement of this remedy cripples the wife’s  future  plans of life and prevents her from using that self-destructive remedy… The pledge of equal protection of laws is thus inherently incapable of being fulfilled by this   matrimonial remedy in our Hindu society. As a result this remedy words in practice only as an engine of oppression to be operated by the husband for the benefit of the husband against the wife.”

On this blog, we have often discussed the question of whether, to prove discrimination, once must show that the law was intended, or had a motivation to, discriminate; or is it adequate to show that the law, although neutral in its terms, has a disproportionate impact upon a certain group of people. The former views discrimination as a result of a discrete, intentional act; the latter, as the result of long-standing structures and institutions. The former understands social realities as independent of law, providing a neutral background within which law operates; the latter insists that these social realities are always constructed by, and complementary to, the legal system – and that therefore, laws which reproduce or endorse such social realities are equally suspect (or, in the words, of Justice Albie Sachs, the purpose of a Constitution is to transform “misfortune to be endured into injustice to be remedied“). In his analysis of the differential effects of Section 9 based upon a social reality that placed the cost of child-bearing and rearing disproportionately upon women, Justice Choudary firmly endorsed the latter, more nuanced understanding, of equality.

The Radicalism of Sareetha

We are now in a position to understand the full extent to which Sareetha was a transformative and radical judgment. In specifically applying Article 14 to the private sphere, Justice Choudary repudiated the privacy of the Ancients, according to which equality was a value only in the public sphere. In specifically invoking the power hierarchies and inequalities in the private sphere to justify his decision, he repudiated the spatial conception of the privacy of the moderns, that turns a blind eye to the realities of domination and subordination within the home. In invoking Justice Brandeis, he brought the idea of maintaining an egalitarian balance of power between State and individual into private relationships, and took a small step towards the democratisation of the private sphere. And in finding an Article 14 violation, he advanced a view of equality that was grounded in structures and institutions, rather than individual acts. One may disagree with his final conclusion – and in fact, Flavia Agnes, among others, has made arguments defending S. 9 – but the reasoning remains powerful, and a clarion call for a progressive vision of privacy and equality.

Aftermath

Soon after Sareetha, the Delhi High Court came to the opposite decision. In Harvinder Kaur v Harmender Singh Chaudhary, it held that:

“Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Article 21 nor Article 14- have anyplace. In a sensitive sphere which is at once most intimate and delicate the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond. That the restitution remedy was abolished in England in 1970 by Section 20 of the Matrimonial Proceedings and Properties Act 1970. on the recommendation of the Law Commission headed by Justice Sharman is no ground to hold that it is unconstitutional in the Indian set-up. In the home the consideration that really obtains is that natural love and affection which counts for so little in these cold courts. Constitutional law principles find no place in the domestic code.” 

In its blanket refusal to apply equality and privacy to the “home”, the Delhi High Court reinstated the traditional, spatial view of privacy, that closed off a physical space from State intervention. This was upheld by the Supreme Court, which also added that “the right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself” – thus reinforcing the position that the sanctity of privacy is accorded not to the individual, but to the institution of marriage.

Conclusion

Sareetha, undoubtedly, was buried thirty years ago, and cannot be brought back to life. But while a judgment remains in ashes, its arguments can certainly become phoenixes and rise again. Justice Choudary’s insights are relevant for the ongoing struggle against the non-criminalisation of marital rape, against numerous inequitable provisions in personal law codes, and for the continuing efforts to persuade the Court to understand Articles 14 and 15 in structural terms (another, abortive, effort was made in Naz Foundation, which was also overruled). At the very least, Sareetha should not be forgotten: it should remain in historical memory as a landmark of Indian constitutional law, taught and discussed as a brilliant – if unsuccessful – attempt at radically transforming our constitutional jurisprudence of privacy and equality.

The Constitutionality of the Marital Rape Exception

In the aftermath of the Delhi gang-rape in late 2012, India’s rape laws were subjected to much public scrutiny, and eventually overhauled. While the changes involved, for example, tinkering with penalties for rape, they left one particularly odious part of the law untouched: the marital rape exception.

The Exception to S. 375 of the Indian Penal Code states: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

This Section creates two classes of persons: married women and unmarried women. It denies the protection of rape laws to the former. Consequently, prima facie, Article 14 of the Constitution is attracted. In order to survive a 14 enquiry, it must be demonstrated that this classification bears a rational nexus to a legitimate State objective.

It might be objected, at the outset, that the Exception doesn’t undertake a classification of persons at all, but only criminalizes certain kinds of sexual intercourse (that taking place outside the confines of marriage). That reasoning is specious. This is because the criminal act is defined by whom it is undertaken with. Non-consensual sex with an unmarried woman is a criminal offense; non-consensual sex with a married woman is not (if you’re the husband). Consequently, the classification is clearly on the ground of marital status.

What State objective could justify this classification? The actual objective with which the law was framed, in 1860, is not in doubt. In the England and United States of the time, that status of women was politically, economically, socially and sexually subordinate to men. Politically, they did not have the vote, on the grounds that, in accordance with republican theory, their interests were “virtually” represented by men. Economically and socially, there were restrictions on their freedom to contract, own and dispose off property, and engage as full participants in the economy, on the ground that men and women were born to inhabit “separate spheres” – the former for the public and economic realm, the latter for domesticity, child-birth and child-rearing. Sexually, they were not permitted to refuse sexual intercourse within the bounds of marriage. These numerous disabilities came together in a set of rules known as “coverture rules” – the broad doctrine that on marriage, the rights of the woman were subsumed by the rights of her husband. We can therefore understand that the marital rape exception is nested in a whole host of discriminatory practices that ultimately traced their justification to a denial of a woman’s autonomy and personhood, and grounded her political, economic, social and sexual status in the person of her husband.

There can be hardly any doubt that this set of doctrines was decisively repudiated at the time of the framing of India’s Constitution, as amply evidenced through a reading of the Constituent Assembly Debates. In every way, the Indian Bill of Rights is designed to set at nought the most pernicious hierarchies that pervaded society at the time – hierarchies based on caste, sex, religion and so on. This is reflected in the constitutional provisions that illegalise untouchability and forced labour, and most of all in the non-discrimination provisions under Article 15. To the extent that the Exception to S. 375 was based on the Nineteenth-century common-law rules of coverture, then, it is clear that that is no longer a legitimate state purpose, and the Article 14 challenge must succeed.

In order to justify the marital rape exception, then, the State must invoke a different purpose. It is difficult to see what such purpose could be. One possibility is to argue that the impossibility of marital rape is an integral part of all religions, and that therefore, insofar as the State’s purpose is to give effect to religious sentiments, it is a legitimate purpose. This reasoning was, of course, rejected by the Delhi High Court in Naz Foundation (not overruled on this point by the contrary SC decision), on the ground that the legitimate purpose must not be in conflict with the Constitution itself. Insofar, then, that certain religious practices are themselves directly discriminatory, giving effect to them through law is not a valid State purpose. This comports well with the basic idea of political liberalism (as reflected by the principles of our basic structure): a liberal State is premised on the principle of tolerance for a diversity of religious, moral and ethical doctrines insofar as those doctrines themselves do not deny the foundational idea of political liberalism – that society is built upon the voluntary cooperation of free and equal individuals.

It would seem, therefore, that insofar as the marital rape exception creates a classification between married and unmarried women, and denies to the former the equal protection of its criminal legislation, it prima facie violates Article 14; and I cannot, at the moment, think of a legitimate State purpose that would bear a rational nexus to the differentia, and save it from unconstitutionality.