A little storm is brewing in the Delhi High Court. A bench of two judges (Chief Justice G. Rohini and Justice Sangita Dhingra Sehgal) issued notice to the Union of India seeking a clarification on apparent contradictions between Section 375 IPC and Section 377 IPC.
According to news items, the issue arose in a petition filed by a husband against orders of a court charging him under Section 377 IPC on a complaint filed by his wife. The lower court discharged the husband for offences under Section 375 IPC citing Exception II, the exception commonly labelled ‘marital rape’. Now, the news is unclear on the exact plea taken by the husband, but it seems he is arguing that a similar
exception be created for Section 377 IPC as acts that are non-criminal under
Section 375 IPC remain criminal under Section 377 IPC. In this post we’ll trace
through the changes brought about in 2013 before examining the nature of this unnatural, exceptional confusion that has seemingly crept in.

 

Section 375 IPC was based on ‘sexual intercourse’ with a woman before the amendment in 2013. If this was conducted in circumstances that fell within six defined descriptions, it would be rape.
These descriptions were hinged on the lack of consent and/or lack of will on
part of the woman. The offence had one exception, stating that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
[emphasis supplied]”

 

The 2013 amendment notably broadens the contours of this provision. The clearest determinant of this is the removal of ‘sexual intercourse’ as the barometer of what acts may constitute rape. Instead, we have four different kinds of sex acts that if committed in circumstances falling within any of the seven descriptions would constitute rape. The exceptions also increased from one to two. Reflecting the amended definition of rape, Exception II now states “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. [emphasis supplied]” It is disheartening to see how the legislature on the one hand willingly adopted recommendations made by the Justice Verma Committee in widening the offence, but on the other hand rejected the recommendations for abolishing the marital rape exception and instead proportionately widened its scope without any convincing justifications.

 

The ‘battle’ to remove Section 377 IPC from the statute book has garnered much attention over the previous decade in India. This provision criminalises ‘unnatural offences’: “whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal, shall be punished …”. Let’s compare this with Section 375 IPC. Two sets of differences that survive the 2013 amendments are that (i) Section 377 IPC is unconcerned with issues of will and/or consent, and (ii) Section 377 IPC extends to acts with men, women or animals as against Section 375 IPC which can only have women as victims. One difference that was abolished in 2013 was of language. Pre-2013, Section 375 IPC spoke of ‘sexual intercourse’, whereas Section 377 IPC used ‘carnal intercourse’. We argue this is important and will return to it later.

 

The legal and moral validity of the offence under Section 377 IPC is challenged by bringing attention to the vague and ambiguous words adopted to denote a standard. There is no reported discussion on the kind of acts covered by ‘carnal intercourse against the order of nature’ because the framers found it too repulsive to discuss. While that might have been acceptable in the early and middle 19th century, it should
strike any reasonable person in the 21st century as slightly odd when considering that this phrase can send persons to prison for a life term. After all, social mores have obviously undergone tremendous change over the last 150 years. The courts have attempted to fill these words with meaning, but that exercise has been a poor substitute for an authoritative explanation from a legislature – either colonial or independent. This came to a head in Suresh Koushal v. Naz Foundation [(2014) 1 SCC 1] where the Court noticeably changed the meaning of the test in Section 377. Discussing this serves proceed with examining the issues troubling the Delhi High Court.

 

The Supreme Court examined the constitutionality of Section 377 IPC in Koushal (supra) and found it was valid law. The decision generated voluble discontent and further litigation (most recently in a Special Leave Petition by ‘celebrities’). But this is not the place to discuss those issues and we will move on by stating that we disagree with the conclusions arrived by the Court. What is important for this post is the interpretation of the standard ‘carnal intercourse against the order of nature’.

 

At paragraph 59 of Koushal (the SCC version), the Supreme Court neatly condenses how the understanding of the test in Section 377 IPC has continuously changed at
the hands of the judiciary. Initially, Section 377 IPC was seen as criminalising
‘non-procreative’ acts [Khanu v. Emperor, AIR 1925 Sind 286], which then
moved to include acts ‘imitative of sexual intercourse’ [Lohana
v. State of Gujarat, AIR 1968 Guj 252], and later extended to acts displayed ‘sexual perversity’ [Fazal Rab Shoudhary v. State of Bihar, (1982) 3 SCC 9]. Using E.H. Carr’s analogy of the fishmonger’s slab, the Court at paragraph 60 uses these pieces of raw fish to cook up an unseemly broth:

 

In our opinion the acts which fall within the ambit of Section 377 IPC can only be determined with reference to the act itself and the circumstances in which it is executed. All the aforementioned cases refer to non-consensual and markedly coercive situations and the keenness
of the Court in bringing justice to the victims who were either women or
children cannot be discounted while analysing the manner in which the section has been interpreted. We are apprehensive of whether the court would rule similarly in a case of proved consensual intercourse between adults. Hence it is difficult to prepare a list of acts which would be covered by the section. Nonetheless in light of the plain meaning and legislative history of the section, we hold that Section 377 IPC would apply irrespective of age and consent. It is relevant to mention here
that Section 377 IPC does not criminalise a particular people or identity or orientation. It merely identifies certain acts which if committed would
constitute an offence. Such a prohibition regulates sexual conduct regardless of sexual identity and orientation.

 

In the first part of this paragraph, the text of Section 377 IPC is unceremoniously given a go-by and is replaced with a very good imposter for a common-law offence. The Supreme Court replaced the originally vague test of ‘against the order of nature’ with an upgrade with the “keenness of the Court in bringing justice”. Consent, a concept notably absent from Section 377 IPC, is inserted as a means of deciding when the Court should be keen to do justice. Same sex acts between men, again envisaged in Section 377 IPC and in no small measure the focus of the case itself, are hidden with a sleight of hand that brings women and children to the fore.

 

Before one can digest this, though, we are thrown back to the text and reminded that the provision applies irrespective of consent. So how do we square these apparently contradictory strands of thought? Our answer is that the latter half of the paragraph is the Court’s response to the Article 14 challenge levelled against Section 377 IPC, whereas the former is a window into how the Supreme Court sees Section 377 IPC work in practice. A fine tightrope, this.

 

Which finally brings us to 2016 and the case before the Delhi High Court. The amended definition of rape under Section 375 IPC has the potential, today, to include procreative acts, non-procreative acts, acts imitative of sexual intercourse, as well those displaying sexual perversity. Where parties to the sex act are a man and woman, one finds that the set of acts classically associated with Section 377 IPC will be subsumed within Section 375 IPC itself. This is what, possibly, drives the petitioner-husband to argue for extending the rape exception to a marital ‘sexual act’ exception which covers Section 377 IPC as
well.

 

One could argue the ‘marital rape’ exception was only designed to permit procreative sex – an argument that fits the bill for the Victorian morality the exception propagates. The original drafting of Sections 375 and 377 IPC having used ‘sexual intercourse’ and ‘carnal intercourse against the order of nature’ could then be used to support this argument. Because the former has been interpreted by the Indian judiciary to mean peno-vaginal or procreative intercourse. But as we know, exception moved beyond ‘sexual intercourse’ in 2013, taking away the legs of this argument. Even if the scope of Section 377 IPC was construed to only mean non-procreative sexual acts, again differences could be drawn. But Section 377 IPC is a judicial sword today, with a focus on consent, pace Koushal. Well, maybe without a focus on consent, but a judicial sword nonetheless. Unintentionally then (for marital rape was not discussed in any capacity by the Supreme Court), we find that it can make sense to argue for
the extension. The marital rape exception deems consent to always exist in
matrimonial sex, and this existence of consent defuses the ‘judicial keenness’
that Koushal places as the trigger for an act to be labelled an offence under Section 377 IPC.

 

 

All this would still remain insufficient to actually support any extension of the exception.
The argument ignores a basic premise that context drives crime. The same act can be the basis for more than one offence. For instance, an act of demanding dowry can be an offence under the Dowry Prohibition Act, 1961 as well as an offence under Section 498-A IPC. Having the same acts as an offence under Sections 375 and 377 IPC does not automatically mean exceptions for the former extend to the latter. This possibility of the same set of acts/omissions constituting multiple offences has been countenanced as far as back as 1897 in Section 26 of the General Clauses Act.

 

This petition still provides a unique opportunity to the High Court. It could, perhaps, make stern observations and hold that the marital rape exception does not withstand constitutionality. Importantly, it could point out the contradiction posed by the marital rape exception when read together with the Protection of Children from Sexual Offences (POCSO) Act 2012. The IPC ‘excepts’ rape with a wife above 15 years of age, but the 2012 Act criminalises sexual acts with ‘children’ who constitute persons below 18 years of age (notwithstanding the provisions of Section 42A of the POCSO). It could also clear the air over the position of consent in Koushal. To recapitulate, we argue that the decision suggests Section 377 has been attracted, and should be attracted, in situations of non-consensual sexual acts. It would be interesting to see what developments are made.