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ABSTRACT
S 377 has again become a hot topic of debate with the Supreme Court recently deciding to set up a bench to hear challenges to its constitutionality. I focus upon one particular argument in the curative petition, which claims that the change in the definition of rape in S 375 of the IPC has an impact on what can be considered criminal under S 377. I shall argue that the law’s change in the definition of rape reflects the manner in which societal understandings of sex itself have evolved, because rape is often defined in contrast to the “regulative ideal” of “ordinary” sexual intercourse. Further, this will demonstrate that merely going Naz Foundation’s way of restricting the application of S 377 to non-consensual “unnatural” intercourse is not enough. In order for the new S 375 to make sense, there is no option but for S 377 to be radically reinterpreted.
Acknowledgements
I would like to thank Faiza Rahman, Tanvee Nandan, Apoorva Sharma and Nikita Agarwal for their valuable feedback on this article. I would also like to thank Tarunabh Khaitan for his helpful and detailed editorial comments, as well as two anonymous peer reviewers for their useful observations. All errors in the article are mine alone.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 Lewis Carroll, The Annotated Alice: The Definitive Edition (Martin Gardner ed, WW Norton & Company 2000) 213.
2 Indian Penal Code 1860, S 377 reads as follows: ‘377. Unnatural offences. – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation. – Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section’.
3 Navtej Singh Johar & Ors v Union of India WP (Crl) 76/2016 (Supreme Court of India, 8 January 2018) <http://supremecourtofindia.nic.in/supremecourt/2016/14961/14961_2016_Order_08-Jan-2018.pdf> accessed 9 March 2018. See also Press Trust of India, ‘Section 377: Bench to Hear Curative Plea’ Business Standard (New Delhi, 2 February 2016) <http://www.business-standard.com/article/current-affairs/section-377-bench-to-hear-curative-plea-116020200805_1.html> accessed 9 March 2018.
4 For a copy of the actual petition filed by the petitioners before the Supreme Court, see Navtej Singh Johar and Ors, Copy of Writ Petition (Crl) No 76/2016 <https://barandbench.com/wp-content/uploads/2016/06/NAVTEJ-SINGH-JOHAR-ORS-VS-UNION-OF-INDIA-WRIT-NO-OF-2016.pdf> accessed 9 March 2018. See also Dhamini Ratnam, ‘My orientation is Different and that is No Crime: Navtej Singh Johar’ Live Mint (29 June 2016) <http://www.livemint.com/Leisure/6GFyIOJTehFA2OS4C998bP/My-orientation-is-different-and-that-is-no-crime-Navtej-Sin.html> accessed 9 March 2018.
5 The fact that S 377 effectively criminalized homosexuality made it difficult for LGBT persons to directly approach the Court.
6 Suresh Kumar Koushal v Naz Foundation (2014) 1 SCC 1. On academic criticism of this case, see generally Tarunabh Khaitan, ‘Koushal v Naz: Judges Vote to Recriminalise Homosexuality’ (2015) 78 Modern Law Review 672; Siddharth Narrain, ‘Lost in Appeal: The Downward Spiral from Naz to Koushal’ (2013) 6 NUJS Law Review 575; Sujitha Subramanian, ‘The Indian Supreme Court Ruling in Koushal v. Naz: Judicial Deference or Judicial Abdication?’ (2015) 47 George Washington Int’l Law Review 711.
7 Curative Petition filed by Naz Foundation before the Supreme Court of India, Curative Petition (C) No 88-102 of 2014 (Supreme Court of India, 31 March 2014) [12–14].
8 S 375 of the IPC, before the changes made to it by the 2013 Amendment, read as follows:
375. Rape.–A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First.-Against her will.
Secondly.-Without her consent.
Thirdly.-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.-With or without her consent, when she is under sixteen years of age.
Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception.-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
9 Sakshi v Union of India (2004) 5 SCC 518. On the influence of Victorian social mores on the sexual offences provisions of the Indian Penal Code, see generally Alexander Bubb, ‘Blustering Sahibs and Section 377’ (2009) 44 Economic and Political Weekly 25.
10 The amended version of S 375 of the IPC reads as follows:375. Rape. – A man is said to commit “rape” if he–(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:First. – Against her will.Secondly. – Without her consent.Thirdly. – With her consent, when her consent has been obtained by putting her or any person inwhom she is interested, in fear of death or of hurt.Fourthly. – With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.Fifthly. – With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.Sixthly. – With or without her consent, when she is under eighteen years of age.Seventhly. – When she is unable to communicate consent.Explanation 1. – For the purposes of this section, “vagina” shall also include labia majora.Explanation 2. – Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.Exception 1. – A medical procedure or intervention shall not constitute rape.Exception 2. – Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
11 Naz Foundation v NCT of Delhi [2010] CriLJ 94 (Delhi High Court).
12 As a clarification, the term “sex” shall be used in this essay in reference to sexual acts, not to identity.
13 John Gardner and Stephen Shute, ‘The Wrongness of Rape’ in Jeremy Horder (ed), Oxford Essays in Jurisprudence: Fourth Series (Oxford University Press 2000) 210.
14 ibid.
15 John Gardner, ‘The Opposite of Rape’ (2015) Oxford Legal Studies Research Paper 6/2016, 2 <https://ssrn.com/abstract=2727269> accessed 20 January 2018.
16 ibid 4.
17 Note that these are not necessarily the same. ibid 2.
18 Catharine Mackinnon, Feminism Unmodified: Discourses on Life and Law (Harvard University Press 1987) 86–87 (emphasis in original).
19 ibid 87.
20 ibid 88. See also Catherine Mackinnon, ‘Feminism, Marxism, Method, and the State: Towards Feminist Jurisprudence’ in Frances Olsen (ed), Feminist Legal Theory Volume I: Foundations and Outlooks (New York University Press 1995) 100–101. Similarly, Andrea Dworkin observes that rape is not committed by deviants, but instead ‘rape is committed by exemplars of our social norms…. Rape is no excess, no aberration, no accident, no mistake – it embodies sexuality as the culture defines it’. Andrea Dworkin, Our Blood: Prophecies and Discourses on Sexual Politics (Perigee Books 1976) 45–46; see also Rebecca Whisnant, ‘Feminist Perspectives on Rape’, The Stanford Encyclopedia of Philosophy (Fall edn, 2017) <https://plato.stanford.edu/entries/feminism-rape/> accessed 17 January 2018.
21 Gardner and Shute (n 13) 210.
22 Indian Penal Code 1860, S 375 (n 8).
23 See Sakshi v Union of India (2004) 5 SCC 518.
24 ibid.
25 This incidentally is a first indication of the intricate way in which S 375 and S 377 are related.
26 Sakshi (n 23) [7].
27 ibid [17].
28 ibid [26].
29 ibid [18]. The significance of this dictionary understanding too will come to light later in the essay.
30 As can be seen from the Law Commission’s 156th Report cited in Sakshi’s case. Linguistically, it is also interesting that S 377 uses the term “carnal” intercourse instead of “sexual” intercourse against the order of nature. It seems clear that the drafters of the Indian Penal Code had trouble in even giving such acts the label of “sexual”. This use of contrasting words also buttresses the argument about S 377 being defined in opposition to S 375.
31 AIR 1925 Sind 286 (Sindh High Court).
32 ibid.
33 Lohana Vasantlal v The State [1968] CriLJ 1277 (Gujarat High Court).
34 Saptarshi Mandal, ‘The Wife as an Accomplice’ (2016) 46 Hong Kong Law Journal 33, 48.
35 Gardner (n 15) 1–2.
36 This is partly why Mackinnon points out not difference, but the similarity, between rape and heterosexual sexual intercourse. See Mackinnon, Feminism Unmodified (n 18) 87.
37 Sakshi (n 23).
38 172nd Law Commission of India Report, Review of Rape Laws, [3.1.2] (2000) <http://www.lawcommissionofindia.nic.in/rapelaws.htm> accessed 20 January 2018.
39 ibid [3.6]. Emphasis added.
40 He went on to state: “We are unwilling to insert, either in the text, or in the notes, anything which could have given rise to public discussion on this revolting subject; as we are decidedly of the opinion that the injury which would be done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures framed with the greatest precision”. First Indian Law Commission, Report of the Indian Law Commission on the Penal Code, Note M on Offences Against the Body in Penal Code of 1837 (1837) in Koushal (n 6) [37].
41 K Burgess-Jackson, Rape: A Philosophical Investigation (Dartmouth 1996) 44–49; from Rebecca Whisnant, Feminist Perspectives (n 20). See also Ved Kumari, ‘Gender Analysis of Indian Penal Code’ in Amita Dhanda and Archana Parashar (eds), Engendering Law: Essays in Honour of Lotika Sakar (Eastern Book Company 1999) 139.
42 Mathew Hale, The History of the Pleas of the Crown (George Wilson ed, vol 1, T Payne 1778) 628.
43 Charlton T Lewis and Charles Short, A Latin Dictionary (Harper and Brothers 1879) <http://www.perseus.tufts.edu/hopper/text?doc=Perseus:text:1999.04.0059:entry=rapio> accessed 17 January 2018.
44 Report of the Committee on Amendments to Criminal Law, 83, 94 (2013) <http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf> accessed 17 January 2018 (hereafter, ‘JVC Report’). I disagree with the formulation of rape as it being ‘just like any other crime against the human body under the IPC’ though, as that sort of formulation, as Mackinnon notes, makes all the mistakes that end up preventing us from critiquing sex itself.
45 Mackinnon, ‘Feminism, Marxism, Method, and the State’ (n 20) 100.
46 Merriam-Webster’s dictionary includes both heterosexual and non-heterosexual intercourse in its latest definition. <https://www.merriam-webster.com/dictionary/sexual%20intercourse> accessed 18 January 2018. The latest Oxford Dictionary too defines it in a way that does not exclude non-heterosexual penetration. <https://en.oxforddictionaries.com/definition/sexual_intercourse> accessed 18 January 2018.
47 I borrow this from HLA Hart in his Preface to The Concept of Law: “…the suggestion that inquiries into the meanings of words merely throw light on words is false. Many important distinctions, which are not immediately obvious, between types of social situation or relationships may best be brought to light by an examination of the standard uses of the relevant expressions and of the way in which these depend on a social context, itself often left unstated. In this field of study it is particularly true that we may use, as Professor JL Austin said, ‘a sharpened awareness of words to sharpen our perception of the phenomena’”. HLA Hart, The Concept of Law (2nd edn, Oxford University Press 1994) v.
48 See subpart titled “S 375 and its legal interpretation pre-2013”.
49 Obergefell v Hodges 135 US 2584 (2015).
50 ibid 2602–03 (Kennedy J).
51 ibid 2612–13 (Roberts CJ).
52 Mackinnon, Feminism Unmodified (n 18) 90.
53 JVC Report (n 44).
54 ibid 111. It is interesting to note here that the South African Law Commission recommended the change in question, while critiquing the old definition as relying on “conventional heterosexual intercourse”. It also recommended this expansion partly on the basis that the old definition did not “reflect the reality that not only women experience ‘rape’”, hinting at the necessary connection between the expanded definition of rape and its relation to what would otherwise fall under S 377 in the IPC. See South African Law Commission, Sexual Offences (Law Com DP No 85, 1999) 111. <http://www.justice.gov.za/salrc/dpapers/dp85.pdf> accessed 19 January 2018.
55 The JVC in fact did not mention S 377 at all, which is strange especially given that previous Law Commissions that dealt with sexual offences inevitably mentioned it, such as the 156th and 172nd Law Commissions. The silence of the JVC on S 377 might have been broken by the above reference to South Africa, where constitutional jurisprudence from its very inception sought to break the legal notions that subjugated sexual minorities. See for example, National Coalition for Gay and Lesbian Equality v Minister of Justice [1998] ZACC 15; 1999 (1) SA 6.
56 Though there are some who go even further and claim that even the prefix of “sexual” is not desirable and prefer likening rape with something like “aggravated assault”. See Gardner and Shute (n 13) 211.
57 Canadian Criminal Code 1985, ss 271–273 <http://laws-lois.justice.gc.ca/eng/acts/C-46/> accessed 17 January 2018.
58 The Protection of Children from Sexual Offences Act 2012, ss 3 and 4. The gender neutrality is in respect of both the perpetrator and the victim. The JVC too recommended that S 375 should be gender neutral, but only in respect to the victim. See JVC Report (n 44) 439–440. My following discussion will indicate partially why the suggested gender neutrality was limited to the victim.
59 JVC Report (n 44) 107.
60 ibid 111.
61 I am not necessarily supportive of this feature of the criminal law, but am just noting that it is an essential feature of the current criminal justice system. See Grant Lamond, ‘What is a Crime?’ (2007) 27 Oxford Journal of Legal Studies 609, 610. See also Gardner and Edwards, ‘Criminal Law’ in Hugh LaFollette (ed), The International Encyclopedia of Ethics (Wiley-Blackwell 2013) 1186, 1187.
62 See subpart titled “S 375 and its legal interpretation pre-2013”.
63 State (Govt of NCT of Delhi) v Mahmood Farooqui, Unique Case ID No. 02406R0238772015 (Delhi District Court, 30 July 2016).
64 Mahmood Farooqui v State (Govt of NCT of Delhi) 243 (2017) DLT 310; 2017 (4) RCR (Criminal) 491. An SLP against the High Court judgement was dismissed by the Supreme Court on 19 January 2018. See <http://supremecourtofindia.nic.in/supremecourt/2017/42460/42460_2017_Order_19-Jan-2018.pdf> accessed 21 January 2018.
65 See Mrinal Satish, ‘The Farooqui Judgment’s Interpretation of Consent Ignores Decades of Rape-Law Reform and Catastrophically Affects Rape Adjudication’ The Caravan (7 October 2017) <http://www.caravanmagazine.in/vantage/farooqui-judgment-consent-ignores-rape-law-reform-catastrophically-affects-adjudication> accessed 21 January 2018.
66 However, it would have possibly increased their argumentative burden. It might be argued that this was also partially because it is disputed whether S 377 covers acts that do not involve penile penetration in some way, and whether cunnilingus is covered is disputed. There are contrary judicial opinions on this subject. For example, in the famous Khanu v Emperor (n 31), the Court, in obiter, states, “there is no intercourse unless the visiting member is enveloped at least partially by the visited organism…. Looking at the question this way it would seem that sin [sic] of Gomorrah is no less carnal intercourse than the sin of Sodom. The sin of Lesbos or Reboim is clearly not such intercourse, and I doubt if mutual cheirourgia [masturbation] would be such”. A similar obiter can be found in the judgement of the Orissa High Court in Calvin Francis v State of Orissa 1992 (2) Crimes 455 [10]. This needs to be seen in the light of S 377’s origins in Victorian times, with Queen Victoria famously refusing to admit that lesbians even existed. See Laurence Wai-Teng Leong, ‘Decoding Sexual Policy in Singapore’ in Lian Kwen Fee and Tong Chee Kiong (eds), Social Policy in Post-Industrial Singapore (Brill 2008) 288.
However, juxtaposed with this is the fact that there have been several cases of harassment and even arrests of women accused of same-sex relationships under S 377. See Bina Fernandez and NB Gomathy, The Nature of Violence Faced by Lesbian Women in India (Research Centre on Violence Against Women, TISS, Mumbai 2003) 50–59, <http://download.tiss.edu/fap/RCI-VAW/RCI-VAW_Publications/The_Nature_of_violence_faced_by_Lesbian_women_in_India.pdf> accessed 2 March 2018. Similarly, a Magistrate in an order has observed that a case of two adult lesbian women involved S 377. See Naz Foundation (n 11) [22].
It is clear that there has not been an authoritative pronouncement on the issue yet. Either way, it being contentious should have been all the more reason for the prosecution to bring it up, or for at least one of the Farooqui judgements to have mentioned it.
67 It might be claimed that the prosecution would not have done this because, if it did so, even the victim could have been charged under S 377. This is, however, a weak argument, as even though S 377 does not take consent into account, it still punishes only those who “voluntarily” engage in the acts mentioned. Even assuming that consent is to be viewed from the perspective of communication of the consent and its perception by the accused, as held by the Delhi High Court in the Farooqui case (n 64 [102]), this does not mean that the act became voluntary for the victim. See Indian Penal Code 1860, S 39.
68 172nd Law Commission of India Report (n 38).
69 Pratiksha Baxi, ‘The Criminal Law Ordinance 2013 on Sexual Assault – Cut, Paste and Shock!’ (Kafila, 5 February 2013) <https://kafila.online/2013/02/05/the-criminal-law-ordinance-2013-on-sexual-assault-cut-paste-and-shock-pratiksha-baxi/> accessed 10 January 2018.
70 On the normative value of the law in general, see Hart (n 47) 57, 85.
71 The normative focus is clearly on not prohibiting sexual activity itself, but only non-consensual sexual activity.
72 That too a crime punishable with up to imprisonment for life. See Indian Penal Code 1860, S 377.
73 Sexual intercourse by husband upon his wife during separation.
74 Sexual intercourse by a person in authority.
75 For instance, the explanation to S 376B states: “In this section, ‘sexual intercourse’ shall mean any of the acts mentioned in clauses (a) to (d) of section 375”.
76 It might be argued that the deliberate confining of the application of these explanations in S 376B and S 376C indicates that “sexual intercourse” in S 375 means something different, in the absence of a similar explanation in S 375. However, S 375 mentions “sexual intercourse” only once, in Exception 2 (The Marital Rape Exception). As I argue below (in footnote 78), there is no reason to confine the reference to sexual intercourse in S 375 in this manner.
77 See Indian Penal Code 1860, ss 376A, 376B and 376C before the changes made by the Criminal Law (Amendment) Act 2013. All had references to “sexual intercourse”, which was understood as penile–vaginal penetration alone. This is because S 375’s reference to “sexual intercourse” was, at the time, understood in the same way. See Sakshi (n 23) [20].
78 Exception 2 to S 375 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”. Some might claim that the reference to “sexual acts” in the exception implies that S 375 has now expanded beyond sexual intercourse. I would argue against this, partly because of my argument about the necessary connections between rape and conceptions of sexual intercourse. The sexual acts referred to can easily refer to ss 354A–D, for example. It would make nonsense of an already nonsensical exception to claim that the exception only applies to some sexual acts and not others. Only that is consistent with the “logic” of the marital rape exception, which is to “protect the institution of marriage”. See Independent Thought v Union of India (2017) 10 SCC 800 [81] (Lokur J).
79 Mandal (n 34) 47.
80 There is currently much hand-wringing on this issue, with the Delhi High Court seeking the Centre’s response over a petition highlighting the legal “inconsistency” on this issue. See PTI, ‘Delhi HC Seeks Centre’s Response On “Inconsistency” in Rape Law’ Hindustan Times (20 July 2016) <http://www.hindustantimes.com/india-news/delhi-hc-seeks-centre-s-response-on-inconsistency-in-rape-law/story-0AUojky2atWTroUNHmEckI.html> accessed 18 January 2018.
81 It will still cover bestiality. It might also cover acts such as thrusting of the penis between the thighs, as was discussed by the Kerala High Court in State of Kerala v Kundumkara Govindan [1969] Cri LJ 818 (Kerala High Court), which was seen as a penetrative act.
82 Koushal (n 6).
83 This is indicated by the fact that the judgement, while referring to S 375, quoted the pre-2013 version of the provision. See ibid [34]. However, it did mention the amendments in paragraph 32 of its judgement when noting that S 377 was not amended by the act. Either way, it is highly doubtful whether Koushal can be seen as an authoritative view of the situation post 2013, both because it clearly did not notice the change in S 375 in paragraph 34 of the judgement and also because arguments in the case were concluded in 2012, before the amendments were made.
84 Though in defence of that judgement, the judges in that case wrote it in 2009, much before the Criminal Law (Amendment) Act 2013.
85 Emile Durkheim, The Division of Labour in Society (WD Halls (tr), Macmillan 1984) 24.
86 Naz Foundation (n 11) [48].
87 The Indian Penal Code 1860, S 351.
88 ibid, S 350.
89 ibid, S 321.
90 S 354A dealing with sexual harassment might also possibly apply because it does not seem to state that the victim can only be a woman, even though it mentions woman in (1)(iii).
91 JVC Report (n 44) 439–440.
92 A possible objection to this would be that this still means that sexual violence to persons who are not women will not count as “rape”. That I allow for this possibility is because I do sympathize to an extent with arguments of those who claim that rape is not just about sexual violence, it is about sexual violence against women. Rape is a tool through which men, as a class, assert power over women, as a class. See Mackinnon, Feminism Unmodified (n 18) 89–90. So, according to this argument, a separate category would keep that connotation of rape intact, so that critiques of patriarchy through an analysis of rape do not get blurred.
93 The reading in of consent can be done by noting the similarity of S 375 to the read-down S 377. It can also be done through the constitutional formulations in Naz Foundation (n 11). Both arguments can be made simultaneously.
94 Sexual offences against children are dealt with separately under the POCSO Act, and best left to that tailor-made regulatory regime.
95 Commercial Tax Officer v Binani Cement (2014) 8 SCC 319 [27–36].
96 A similar rationale was used by the Supreme Court in Githa Hariharan v RBI (1999) 2 SCC 228. In this case, the court preferred to read-in the words “in the absence of” in the place of “after” into Section 6 of the Hindu Minority and Guardianship Act 1956, rather than strike-down the section completely. Similarly, the House of Lords in Ghaidan v Godin-Mendoza [2004] UKHL 30 notes that a legislation might be given a different meaning if doing so makes it conform to the Human Rights Act 1998. This can be done even when the meaning of the legislation otherwise admits of no doubt in accordance with the ordinary principles of statutory interpretation.
97 Justice KS Puttaswamy v Union of India (2017) 10 SCC 1, [124–128] (Chandrachud J). But privacy alone can never be a sufficient justification, as many things that occur in private are grave wrongs.
98 Gardner (n 15) 29.