Finally, judgement has been reserved and fate of "Men of India" sealed. Intervening NGOs – Men Welfare Trust (MWT) and HaridyaNFH – representing "Men of India", effectively argued through their learned counsels J. Sai Deepak and Raj Kumar Kapoor respectively, against removal of Exception 2 to s. 375 IPC (Rape Law). Arguments/Averments were presented in front of special bench of Delhi High Court constituted to hear PIL praying to bring non-consensual sex by husband on his wife under the ambit of Rape Law meaning removal of Exception 2. Govt. of India (GOI), main respondent, for political reasons pushed the can down the road and refused to take any stand. Govt. of Delhi through its counsel though initially opposed, with full force, removal of Exception 2, inviting appreciation from men of country, but after the judgement was reserved requested its submissions be not considered. Last minute stand of Govt. of Delhi, unprecedented in every sense, may be due to back channel understanding with feminists or fear of feminists resulting in cold feet on the part of Govt. of Delhi. Nevertheless, men especially Men's Rights Activists (MRAs) could not be more ecstatic as it resulted in Feminists and MRAs coming face to face in a constitutional court, wait of many years was finally over.
If history is of any indication, when men got embroiled in a battle brought to their doorsteps and their pride was at stake, they fought to win. This blog is an attempt to capture excerpts from final submissions, all encompassing, of learned counsel J. Sai Deepak representing Men Welfare Trust (MWT). The excerpts/final submissions represent a thought process countering “Constitution of India is feminist”. Further, they form weapons of men in instant battle and all future battles against feminists.
EXCERPTS
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That said, the issue at hand is not merely about consent, but also about context which the Petitioners refuse to see or acknowledge. The multi-layered and multi-variable nature of this equation has been reduced to the sole issue of “consent” which is precisely where the Petitioners and the Intervenor disagree.
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A. That the prayers sought by the Petitioners are beyond the scope of any jurisdiction or power that this Hon’ble Court may wield under any law or the highest law, namely the Constitution, since if such prayers were granted, they would have the effect of creating a new class/species of offence, which is beyond the pale of the power of judicial review. In short, the prayers sought by the Petitioners require this Hon’ble Court to violate one of the most fundamental, sacrosanct and basic features of the Constitution, namely the doctrine of separation of powers and that too in the matter of criminalisation;
B. That the doctrine of separation of powers is not meant to be a mere transactional construct for division of territory/turf between the various organs, but is meant to preserve the right of the “Republic”, meaning the people, to participate in law and policy-making, lest it becomes the preserve of the few.
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D. That in view of the submissions of both Learned amici which lean in favour of the Petitioners’ position, in the interest of balance and from the perspective of natural justice, inputs ought to have been sought from an additional amicus. In this regard, attention of this Hon’ble Court is drawn to the fact that there have been instances wherein two amici representing divergent positions have been appointed by the Hon’ble Supreme Court to assist it on matters of constitutional significance.
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E. That contrary to the Petitioner’s contention, Exception 2 to Section 375 does not in any manner envisage or require a wife to submit to forced sex by the husband nor does it encourage the husband to impose himself on the wife. Also, it is untrue that there are no remedies whatsoever to address non-consensual sex between spouses. A clear reading of Sections 376B of the IPC along with Section 198B of the CrPC, Section 498A of the IPC and the Domestic Violence Act would clearly show that there is a clear legislative intent behind them and there exists a framework to criminally prosecute a husband who refuses to respect consent;
F. That the legislature through the Exception 2 to Section 375 of the IPC and through the creation of a separate legal ecosystem for dealing with spousal sexual violence has indeed criminalised it, without terming it “rape” within the meaning Section 375 of the IPC. The said distinction in labelling and treatment, which is grounded in respect for the complexity of the institution of marriage and not ‘patriarchy’, is both reasonable and based on intelligible differentia, thereby satisfying the touchstones of Articles 14, 15, 19 and 21;
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H. That arguendo the existing legal framework that criminalises spousal sexual violence is indeed inadequate, inadequacy does not constitute unconstitutionality, and it is certainly not for the Judiciary to remedy it since it falls within the exclusive preserve of the Legislature. The Judiciary and that too only the Hon’ble Supreme Court under Article 141, and no High Court under 226, can fill in a legal void or address obvious lacunae. Neither is this Hon’ble Court exercising jurisdiction under Article 141 (since it cannot), nor does the instant case involve a legal void or an obvious lacuna;
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the exhortation by the Petitioners to conform to such “international norms and standards” reeks of coloniality and goes against the grain of their own submission that Exception 2 to Section 375 is less constitutional since it is “colonial”. In other words, the Petitioners’ position on what is ‘colonial’ and what is “international” is selective, convenient and constitutionally fallacious;
L. That even going by the Petitioners’ erroneous call to authority citing “international norms and standards”, the movement the world over has been towards gender-neutral laws in the realm of sexual violence. And yet, the irony of the case at hand is that the Intervenor which is named Men Welfare Trust has been actively campaigning for gender-neutral laws and preservation of the institution of marriage, whereas the Petitioners have sought gender-specific prayers and creation of a gender specific offence at the expense of the marital institution;
M. That in view of several judgements of High Courts and the Supreme Court recognising the extent of abuse of existing provisions such as Section 498A of the IPC by alleged victims, the law on sexual violence itself needs an overhaul, introduction of gender-neutrality being but one aspect of it. To add to this crucible by striking down Exception 2 to Section 375 would be to add to existing inequities and injustice.
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At best, a Court of law can prod the Legislature into expediting the process of consultation and legislation if the legislature deems it necessary, but under no circumstances can a Court of law direct the direction or outcome of the process. In fact, the Court cannot even influence the process by issuing an advisory opinion on matters which are outside the scope of its constitutional remit.
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The Petitioners’ invitation to this Hon’ble Court to transgress the lines drawn by the doctrine of separation of powers is deeply disturbing for it could have disastrous consequences for the public’s respect for all institutions as well as the Constitution. Both constitutional morality and institutional independence would stand undermined if the Petitioners’ prayers were to be granted;
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v. The argument that consent alone matters and marriage changes nothing in this regard, is legally and practically baseless. The factum of marriage translates to serious obligations on the part of the partners, from conjugal expectations and rights to financial obligations, mental health obligations and finally duty towards the progeny. Considering this, to contend that the institution of marriage cannot form the basis of Exception 2 to Section 375 is to deny the obvious. Further, it is evident from the language of Section 375 and Section 376B that ‘will’ and ‘consent’ are related but not identical, which explains the reason behind the use of “without consent” in the latter provision. In a marital relationship, since conjugal expectations are a two-way street, partners may choose to accede to each other in matters of sex out of a variety of considerations, not all of which necessarily amount to cruelty. In such circumstances, ‘consent’ is given as a matter of spousal intimacy, although ‘will’ may be absent. If every such instance were to be treated as a cut-and-dried instance of “marital rape”, the only way partners in a marriage or spousal-like relationships can ever hope to have sex without the fear of accusations of rape is by drawing a detailed written agreement on the steps to be observed for courtship or mating, or by creating a detailed evidentiary record of every act of intimacy, or by inviting a third party to act as a witness, none of which is healthy for the survival of the institution of marriage. This would be the precise consequence of a blinkered approach to consent without context getting its due;
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In this regard, the Petitioners have relied on the judgment of QueenEmpress v. Kandhaia and Others 1884 SCC OnLine All 142 and S. Khushboo v. Kanniammal & Another (2010) 5 SCC 600 to argue in the context of Section 40 of the IPC that the IPC recognises only an offence which is synonymous with a prohibited ‘act’ and does not recognise a distinction based on the offender or the context. This reliance is entirely misplaced since the IPC contains several provisions whereunder the same ‘act’ committed by different dramatis personae takes a different shape or results in a different outcome. For instance, the starkest distinction based on the offender is the one that is struck between adults and juveniles, which equally extends to sexual offences. The said distinction is observed both from the perspective of the victim as well as from that of the accused. The existence of the POCSO Act despite provisions relating to sexual offences in the IPC is the clearest proof that the definition of offence under Section 40 of the IPC is not blind to context, relationship, age or any other valid consideration. Simply put, the Petitioners argument that its prayers merely seek enlargement of the class of offenders is baseless in light of the legislative reticence to use ‘rape’ in the context of spousal relationships. Accordingly, none of the case laws cited by the Petitioners which permits a Court to enlarge the class of offenders is applicable to the instant case. This also addresses the question of fair labelling of an offence since the Legislature has consciously avoided using “rape” in the context of a spousal relationship, not to protect the spouse, but those connected with them, namely the families and the products/issues of the marriage – the progeny;
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E. Conclusion
21. In conclusion, it is reiterated that the Intervenor is not opposed to recognition of spousal sexual violence. Its limited position is that spousal sexual violence already stands criminalised, as discussed above, and therefore any grievances relating to the inadequacy of the same can be addressed only by the Legislature and not the Judiciary. This is because inadequacy or perceived inadequacy is a matter of legislative policy and not a ground for constitutional challenge. Further, it is the position of the Intervenor that it is possible to protect individual dignity and the marital institution without sacrificing one for the other. Finally, a gender-neutral approach to such issues would be consistent with calls for gender equity.
