Criminalise marital rape and lower age of consent, says SC panel

Criminalise marital rape, and register forced anal penetration in a marriage under section 376 of the IPC as rape and not under section 377 as unnatural sex, says a report submitted by amicus curiae Indira Jaising to the Supreme Court in cases pertaining to violence against women (VAW). Apart from that, important recommendations include the restructuring of the laws on consent to let off adolescents from criminal law in cases of consensual sex and strict punitive action against army men raping women.

The Supreme Court (SC) had made Indira Jaising amicus curiae in 2012 Nipun Saxena case. In 2012, just after the December 16 gangrape case, law student Saxena had filed a public interest litigation (PIL) in the SC, questioning the constitutional validity of the two-finger test, and had questioned about the formation of a victim’s compensation board as per a 1996 SC directive. 

In her report, Jaising had recommended that the age of consent be lowered from 18 years to 16 tears to ensure that young adolescent males are not discriminated for consensual sexual relationships. The report says that the increasing the age of consent under section 375 of the IPC from 16 years to 18 years, and proscribing the age of consent mentioned under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) as 18 years is deemed bad in law and is not in public interest. “By raising the age of consent to 18 years, all consensual sexual activity too, particularly amongst young adolescents, is categorised as rape,” says the report.

The report also calls for an urgent attention to criminalise marital rape. It recommended that exception 2 of section 375 of the IPC, as per which any form of intercourse by a man with his own wife, who is not under fifteen years of age, is not rape, must be done away with. It also recommended that any case of forced anal penetration by a man with his wife should not be registered under section 377, which deals with unnatural sex. It recommended that such cases be registered under section 375 “in view of the expanded definition of rape”. 

Jaising, in her report, also calls for the government to address the cases of rapes committed by the armed forces in border areas, which the report says is a ‘known phenomenon’. And keeping in line with the recommendations of the Justice Verma Committee, the UN Special Rapporteur on VAW, and the UN CEDAW Committee, the reported suggested that "the review of the application of the Armed Forces Special Powers Act and its amendment or repeal” should be taken up. The report also suggests that an Independent Complaints Committee wing be formed in police departments to entertain complaints against the police.  

The report also calls for attention to the ‘Guidelines and Protocols Medicolegal Care for Survivors/Victims of Sexual Violence’ issued by the Ministry of Health and Family Welfare in 2014 which gave detailed guidance to caregivers for medico-legal examination of VAW survivor. The report recommends that the police and trial courts be well-trained in the guidelines to stop inconsistencies in victim testimonies, in a bid to not traumatise the victim further. 

The report also lauded the the criminal justice system in its role in helping bring the survivour’s voice center stage in the post-Justice Verma Committee phase. “The addition of a host of new offences has strengthened the normative framework on VAW,” the report adds. 

It, however, lamented that the proposed Crime and Criminal Tracking Network System (CCTNS), announced after the recommendations of the Justice Verma Committee, is currently stuck due to a shortage of funds. It also brought attention to the lack of full utilisation of the Nirbhaya Fund, under which only CCTVs in public transport have been installed till now. The report also expressed dismay at the underfunding of the Ministry of Women and Child Development, seen largely as one of the definitive bodies that looked at after the welfare of women. 

It further said that having only one One-Stop-Crisis-Centre in a state is inadequate. The report also said that it does not recommend maintaining a sexual offenders registry, which was mooted for by Union WCD minister Maneka Gandhi recently.   

Lawyer Vrinda Grover, a vocal feminist, welcomed the recommendations. She said that the age of consent must definitely be altered. “Recently, there have been many cases in the court which are actually about young lovers getting criminal punishments. Usually families of girls don’t allow them to choose partners, and in any relationship which is inter-caste, inter-class or inter-religion, the law is proving to be a means to strangle them,” said Grover.

She also lent her support to criminalising marital rape. “This is a peculiar situation, where one one hand we allow the principle of consent in sexual relationships, while on the other, we allow the husband to be the dominion of the wife’s life. This is against the right to life guaranteed in the Constitution,” said Grover.  

In 2012, following the Nirbhaya incident, law student Nipun Saxena had filed a PIL in the Supreme Court questioning the validity of the derogatory the two finger test conducted on rape victims. He had contested that the test, which looks at the sexual life of the victim, is in dignified and adds to the trauma of the rape victim. He had further contested that the SC’s direction in 1996 to have a Criminal Injuries Compensation Board compensation board had not been fulfilled. Apart from that he had asked for the issue of directions issued to the state transport authority, so that all state transport license and permit holders comply the Motor Vehicles Act.