Criminalising marital rape

The Delhi High Court is currently considering a batch of petitions challenging the validity of the exemption of marital rape in the rape law of India, i.e., marital rape is not a crime, as per Section 375, Indian Penal Code, 1860 (‘IPC’). The writ petitions have been filed by the RIT foundation and the All India Democratic Women’s Association (AIDWA). A marital rape victim has also joined as an intervener. The petitionschallenge the exception provided to marital rape in the IPC on the ground that the exclusion of marital rape violates the fundamental rights of women to equality, non-discrimination, freedom of expression, privacy, dignity, autonomy and health under Articles 14, 15, 19 and 21 of the Constitution. Exception 2 to Section 375 says that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape. Section 376B says that whoever has sexual intercourse with his own wife, who is living separately, without her consent, shall be punishable with imprisonment for a term, ranging from two years to seven years, and fine.
The Centre has opposed the criminalisation of marital rape and has claimed that criminalising marital rape could lead to a situation where it becomes a tool for women to harass their husbands. The Centre cited the example of Section 498A to buttress its argument. It further said that criminalising marital rape would destabilise the institution of marriage. The affidavit maintained that India has its own set of problems like illiteracy, lack of financial empowerment of females, improper implementation of criminal law. The Centre also implored the Court to add other States as a party to the matter so as to know their views and ensure that there is no issue at a later stage. The affidavit also submitted that a simple deletion of the exception from the Code would not serve any useful purpose. Deciding whether a particular sexual act would constitute rape would completely depend on the wife’s decision. The affidavit questioned that standard of evidence that the court would look for in such a situation.
Some Men’s groups like Forum to Engage Men (‘FEM’) have intervened in favour of removing the exception to marital rape would on the basis that it would send“a message to the married men of India that coercive sex with their wives is a criminal act”.
The matter is being heard by a bench of acting Chief Justice Gita Mittal and Justice C. Hari Shankar. [RIT Foundation v the Union of India, Writ Petition (Civil) 284 of 2015]

Major Decisions:

i. Plea for annulling e-Auction of iron ore and manganese dismissed–The Supreme Court has rejected the plea of Federation of Indian Mineral Industries, Southern Region to stop the e-auction of iron ore and manganese ore by a Central Empowered Committee in Karnataka, appointed by the Supreme Court to monitor the process in 2011, to stop the indiscriminate mining of iron and manganese. The petitioners argued that the situation of 2011 did not prevail any longer and constant monitoring was not required any more. Rejecting it, the Court observed that it would be pre-mature to dispense with the committee. [Samaj Parivartan Samuday v State of Karnataka Writ Petition (Civil) No. 562 of 2009 , date of judgment: 28.08.2017]

ii. Plea to halt tender auctioning of IPL media rights declined–The Supreme Court has declined Subramanian Swamy’s writ petition seeking to halt the present process of IPL auction of telecast rights and rather conduct it through e-auction. Swamy argued that an e-auction would maintain the transparency of the process of auction and ensure maximum revenue for the State. Though rejecting the request, the Court allowed him to file an petition alleging the conflict of interest of Rajiv Shukla as IPL chairman and Star TV being a bidder in the process. [Dr. Subramanian Swamy v Board of Control for Cricket in India,Writ Petition (Civil) No. 645 of 2017, date of order: 28.08.2017]

iii. Supreme Court seeks status report from Gujarat government on Asaram’s trial – The Supreme Court has reprimanded the Gujarat government for the continuous delay in the trial of the godman Asaram accused of raping a woman at his ashram in Ahmedabad. The Court has thus asked for a status report on the trial. The bench pointed out as to how the most important witness, the victim, has not been examined yet. [Ashumal v State of Gujarat, Special Leave Petition (Criminal) No. 6459/2016, date of order 28.08.2017]

iv. Gujarat High Court order directing government to compensate structures destroyed in 2002 riots set aside – The Supreme Court has set aside the Gujarat High Court’s order directing the government to compensate about 500 structures that were destroyed in the 2002 Gujarat riots for reconstruction and repair. The Court accepted the state government’s scheme providing ex-gratia assistance of up to ₹ 50,000 to all religious places, including mosques and temples, which was at par with the destruction of houses. The Court observed that a substantial part of the tax payer’s money cannot be spent on the repair of religious of structures. [State of Gujarat v The I.R.C.G.Civil Appeal No. 3249 of 2016, date of judgment: 29.08.2017]

v. Service details of employees cannot be disclosed under RTI Act: The Supreme Court held that service details of employees fall within the ambit of ‘personal information’ under Section 8(1)(j) of the Right to Information Act, and cannot be furnished unless such disclosure is in public interest. It was hearing an appeal filed by the Canara Bank against the lower courts’ decisions seeking disclosure of its employees’ details [Canara Bank vs. C.S. Shyam, Civil Appeal 22 of 2009, date of judgment: 31.08.2017] (IPA/To be continued)

Saturday, 16 September, 2017