Sex, Lies and Rape Continued: A Response

Several comments were made to the post “Does consensual sex based on false promise amount to rape?”. Recently, a detailed critique was posted by Ms. Sunanda Bharti (see comment section of the previous post). I welcome her and others to the discussion and request that she (and other readers) not take offense to my comments below if they appear a bit testy. I believe most of the points she has raised have been addressed in that blog and in other comments but nevertheless set forth here, at the risk of repetition, a specific response to her contentions.Ms. Bharti says that the IPC does not define consent in very clear terms. This lack of definition of consent in ‘clear terms’ in section 90 is more than made up by the provisions of section 375: those are clear, concerned specifically with rape and must, applying the rules of interpretation, prevail over the general definition of consent in section 90. In regard to misconception of fact in a fully conscious state of mind and in the absence of fear, the only instance stated therein that constitutes rape is when the woman gives consent to a man wrongly believing him to be her husband. Next, it is asked what is wrong with an enlarged interpretation if it is to fill up a ‘lacuna’ in the IPC. The problem here is that filling up ‘lacunae’ in the law is the job of the legislature, not the courts. These ‘lacunae’ are not necessarily inadvertent legislative omissions. They can equally well be by design, deliberately excluded because the legislature and society by implication does not consider those actions to constitute crime. If one concedes these arguments, there is no difference between what the law says and what it ought to say, judges are not really bound to follow firm rules of statutory interpretation but are free to get creative and give new meanings that promote their own notions of ‘justice’ in any case. Words would then mean little, enactments are easily whittled down of substance, societal preferences would hold little sanctity, citizens’ recourse to authority would have uncertain outcome and what we call ‘justice’, reduced to a product of the sensibilities of the presiding judge: in short, the rule of men, not law. Such a view is not only dangerous but can cut both ways – if it can be used to promote women’s rights, it can be equally well used to restrict them another day. Sure as highlighted, the vicissitudes of legislative passage are well-known but that indecisiveness of society is the price to pay for protection from tyranny. Being a democracy, one must accept that the wheels of change roll slowly, persuaded by the soft power of reason flowing from the opinion-maker’s pen rather than the heavy hand bringing down the gavel.It is said that every possible scenario cannot be taken into account by the legislature. There are two answers to that. The first is that rule of law means equal justice under law for all, not justice tailored on a case-by-case basis; one does not have to take every scenario into account. All that is required of the legislature and the superior courts is for certain principles to be laid down which lower courts can apply uniformly and consistently to every situation to determine the outcome. As Cardozo puts it, “The recognition of [judicial] power and duty to shape the law in conformity with the customary morality, is something far removed from the destruction of all rules and the substitution of the individual sense of justice, the arbitrium boni viri. That might result in a benevolent despotism if the judges were benevolent men. It would put an end to the reign of law”. The other part of the answer is that that is precisely why we have a legislature to update laws all the time rather than a one-time event like the convening of a constituent assembly which could simply produce a document and be disbanded for good when its work was done. The end of law is the promotion of justice no doubt and bridging the gap between those two is a continuous exercise which is what the legislature is supposed to do. To put it in a nutshell, these are the classic arguments advanced in favor of judicial activism and must therefore bear with the standard criticisms that the approach is vulnerable to.Ms. Bharti argues that no ‘meeting of minds’ exists, hence no valid consent. This definition of consent does not change the question we are grappling with, i.e., what is the scope of the ‘meeting of minds’ that we are concerned about for the purpose of this provision? Related to the same point, she reiterates her notion of rape that it need not involve physical violence at all. And so, the definition of rape also includes consensual sex performed as a pleasure activity but transformed into a defiled one post facto because of a false promise. These arguments have been discussed in detail in the previous post (and comments therein), so my comments here are really redundant. Rape, in this view, requires no real experience of actual trauma, only the recollection of one. A perfectly pleasurable sexual escapade, soured by later events, can instantly transmogrify into a painful, horrific and worse, criminal act of rape! Agreed that minus the promise of marriage, the woman probably would not have consented to sex but the same thing would however be equally true if he had promised her something other than marriage – suppose he had said he would get her a car but failed to deliver or said he belonged to her caste but was really from another or that he would treat her like a queen. In being less than upfront about his caste, maybe he was thinking all along, “I have duped her into believing that I am from her caste but maybe when she gets to know me better, I can reveal the truth and she will be more willing to see the irrelevance of it”. But this would be clearly impermissible under this newly minted feminist jurisprudence – consensual pre-/extramarital sexual relationships between perfectly willing, single adults would have legal implications. The dating game would now have to adhere to the straightforward rules of old-fashioned commerce: the sex-seeker must reveal all his intentions and ‘business’ offers upfront through a declaration of truth and nothing but the truth in exchange for the sex-giver acceding to his demand in good faith, to be followed by consummation at which point, the binding nature of the former’s obligations are established. Weaving fantasy would have to be forbidden, words would have to be weighed carefully and promises spelt out would have to be kept or else, god forbid, a break-up ensues and a bitter one at that, it is payback time in court! Rape would thus be a convenient weapon of vengeance for the betrayed, the jilted and even the otherwise broken-hearted. This expanded definition, achieved through judicial sleight of hand is built on a legal foundation of quicksand, is nebulous at best, seeks to criminalize an unacceptably broad range of personal conduct through the back door and thereby casts an icy pall over a large domain of individual liberty in a free society, all done under the politically correct guise of protecting the weak and disempowered. Needless to add, I reject it categorically. It is argued that a woman expects not sympathy but that the accused be punished. Meeting individual expectations is not the role of the criminal justice system; rather, meeting society’s expectation of justice is and the two may not coincide. A final point made is that the woman did suffer injustice, so the petition is not frivolous. Perhaps she did but no prima facie case is made out for rape, and my contention is only that this particular charge and the like are frivolous. Yes, not all of us are born with a silver spoon or manage to get into Harvard or IIT; many have had failed relationships, had their trust betrayed by friends, had colleagues spike their promotions and so forth – life is not fair but not all the injustices of life are necessarily criminal offenses or even otherwise actionable by the state. That is why people talk of ‘learning through the experiences of life’, their reference being to caveat emptor, the one rule that applies to life as much as to commerce and must govern our actions at least where we are on our own.

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V.Venkatesan
V.Venkatesan
14 years ago

Dear Dilip,
I think your notion that judiciary cannot fill the gaps in the law is erroneous. It is a recognised principle of interpretation that judiciary can do so, if the law is silent. Take for example, the Association of Democratic Reforms case wherein both the Delhi High Court and the Supreme Court agreed that there was a void in the law, and the voter has a right to information to exercise his franchise. There are many such decision. The test is whether a particular interpretation seeks to enhance the objective of the law, and in this case, it is clearly the safeguarding the interest of the woman who has been wronged.

Arun Thiruvengadam
Arun Thiruvengadam
14 years ago

Dear Mr. Venkatesan,

I fear that we are repeating stances that we’ve taken before, when this issue was discussed earlier. Still,to address the point you’ve raised, there is a clear distinction between the context of criminal law and other areas of the law. Ms Bharti refers to a contractual defintion of ‘consent’ and you now bring up a case involving public law – to me, those examples show a neglect of this important point.

As even activist judges have reminded us, the context of criminal law is very different, and judicial attitudes towards “filling up the gaps” in the law has very different connotations when it comes to criminal law. This is because the consequences for individual liberty are far greater in the arena of criminal law. Instablility in the criminal law caused due to individual judges imposing their subjective views about what constitutes ‘wrong’ or ‘justice’ in individual cases, is precisely the danger that is sought to be avoided. While such instability does injury to the rule of law in general, this is increased significantly in the area of criminal law.

On the specific issue of expanding the definition of rape to include acts not presently covered by it, the decision in Sakshi v. Union of India, AIR 2004 SC 3566, may well constitute a direct precedent. In what follows, I draw attention to particular portions of the judgment
which emphasise the points I’ve made above.

Sakshi, a women’s rights NGO, had filed the case asking the Supreme Court to expand the definition of rape in the IPC to include acts of violence against children and forms of sexual violence which did not involved penetration by the male organ. When the case first came up in 1999, a three judge bench of the Supreme Court headed by Chief Justice Anand directed that the issues raised by Sakshi be referred to the Law Commission of India:

“The issues are important and concern sexual abuse of child. Keeping in view, the rise in crime and the growing menace of sexual abuse of child, we consider it appropriate to … request the Law Commission to examine the issues submitted by the petitioners and examine the feasibility of making recommendations for amendment of the Indian Penal Code or deal with the same is any other manner so as to plug the loopholes.” [Order dated Aug 9, 1999, reported in (1999)6SCC591]

Even an activist judge like Chief Justice Anand (whose activism on behalf of the criminally accused in the DK Basu case has been widely acclaimed) was cautious in his response, and his directions are to be understood against the considerations I set out earlier.

As it happened, the Law Commission did not accept Sakshi’s recommendations in their entirety, and the case was finally decided by the Supreme Court in 2004. Justice Mathur’s judgment for a division bench of the Court rejected the bulk of Sakshi’s arguments for judicially expanding the definition of rape in sec 375. In doing so, the Court relied upon the following principles for construing criminal statutes:

“It is equally well settled that a statute enacting an offence or imposing a penalty is [to be] strictly construed. The fact that an enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that they would ordinarily bear. (Principles of Statutory Interpretation by Justice G.P. Singh p.58 and 751 Ninth Edition).” (At para 19).

The Court also cited the following practical reason:

“It may be noted that ours is a vast and big country of over 100 crore people. Normally, the first reaction of a victim of crime is to report the incident at the police station and it is the police personnel who register a case under the appropriate Sections of the Penal Code.

Such police personnel are invariably not highly educated people but they have studied the basic provisions of the Indian Penal Code and after registering the case under the appropriate sections, further action is taken by them as provided in Code of Criminal Procedure. Indian Penal Code is a part of the curriculum in the law degree and it is the existing definition of “rape” as contained in Section 375 IPC which is taught to every student of law.

A criminal case is initially handled by a Magistrate and thereafter such cases as are exclusively triable by Court of Session are committed the Court of Session. The entire legal fraternity of India, lawyers or Judges, have the definition as contained in Section 375 IPC engrained in their mind and the cases are decided on the said basis.

The first and foremost requirement in criminal law is that it should be absolutely certain and clear. An exercise to alter the definition of rape, as contained in Section 375 IPC, by a process of judicial interpretation, and that too when there is no ambiguity in the provisions of the enactment is bound to result in good deal of chaos and confusion, and will not be in the interest of society at large.” (at para 22)

Interestingly, the Court did accept Sakshi’s argument that a child who makes an allegation of sexual abuse should be allowed to depose by video, and should not be required to be present in court. The Law Commission had rejected this suggestion, citing natural justice concerns. The Supreme Court overruled the Law Commission’s reasoning, and accepted Sakshi’s interpretation of Section 273 of the Cr.P.C. In doing so, the Court was cognisant of the concerns it had raised earlier, and cited the following justification:

“There is [a] major difference between substantive provisions defining crimes and providing punishment for the same and procedural enactment laying down the procedure of trial of such offences. Rules of procedure are hand-maiden[s] of justice and are meant to advance and not to obstruct the cause of justice. It is, therefore, permissible for the Court to expand or enlarge the meanings of such provisions in order to elicit the truth and do justice with the parties.” (at para 31).

What should be noted is that the Court was very sympathetic to the concerns that motivated Sakshi’s petition in general, but did not agree that the remedy lay in judicially interpreting Section 375 to expand its ambit. This is clear from the following direction that the Court included in its final order:

“The suggestions made by the petitioners will advance the cause of justice and are in the larger interest of society. The cases of child abuse and rape are increasing at alarming speed and appropriate legislation in this regard is, therefore, urgently required. We hope and trust that the Parliament will give serious attention to the points highlighted by the petitioner and make appropriate legislation with all the promptness which it deserves.” [at para 35].

I cite the case to make the point that good intentions may not be enough when construing a criminal law issue. Given how the criminal law justice operates, it is pragmatic to do the harder work involved in opting for and successfully pursuing legislative change.

V.Venkatesan
V.Venkatesan
14 years ago

Dear Arun,
Thanks for pointing out that the rule of strict construction will apply in the case of criminal law. I clearly missed that part of the discussion under the previous post.
Having said that, I think we must examine whether this case falls under any of the exemptions to the rule of strict interpretation.
In Reema Aggarwal v.Anupam,(AIR 2004 SC 1418, p.1424) in sections 340B and 498A of the IPC, having regard to the object of preventing cruelty to women, the expression “husband” has been construed to cover a person who enters into marital relationship with the woman concerned whatever may be the legitimacy of the marriage. G.P.Singh says in his book, on p.821: “In adopting a wide meaning of a provision, the undesirability of adopting anything beyond a strict construction of provisions having penal consequences should be weighed against the employment of a broad approach to effectuate the purpose of the Act.
Again, stringent provisions enacted by States for ceizure and confiscation of illegally extracted forest produce and vehicles transporting it have been liberally construed having regard to the object of preventing large scale pilferage and depletion of forest wealth.
He further says: If the linguistic construction does not clearly indicate the Parliament’s intention, regard should be had to the mischief at which the Act is aimed and practical considerations affecting the burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in discharging the burden.