October 22, 2017

Links: The Judicial Understanding of Consent

I don't usually post any material that's not related to content law on this blog but what I understood of the Court's discussion of consent in its acquittal of Mahmood Farooqui for rape made me very uncomfortable.

I've talked about why that was the case in two pieces, links to which I've shared here:


December 29, 2016

Memories of Collecting and Conserving Butterflies

Peter Marren's Rainbow Dust about British butterflies in which he notes that 'the same kinds of people who collected butterflies two or three generations ago became equally ardent conservationists', reminded me of my own days collecting butterflies and rearing caterpillars. As Marren says:
"The smell of naphthalene, otherwise known, with a certain irony, as mothballs, still brings back memories of those distant days, just as a tea-soaked madeleine cake ignited that ‘vast structure of recollection’ for Marcel Proust. It’s the smell of a lost world, of home museums, of a time when one’s excitement at discovering the natural world was just beginning. Everything about nature was fresh and wonderful , and a well-stocked naturalist’s den was the most worthwhile thing in the world."
Cover of 'Common Butterflies of India'
My introduction to butterflies (and nature more generally complete with the 'home museum' Marren refers to) came from Thomas Gay Waterfield, affectionately called Dada, of whom I'd written a few days after his death in 2001:
"...the only thing that stands out in my mind of that first meeting is a large bowl of water and some chhapatis on his windowsill, kept there for birds. That Dada was an ardent nature lover was the first in a long series of things I was to learn of him. In those years, he often took me for nature walks where he taught me one of the most important things I've ever learnt: to take time off to appreciate the wonders of nature which surround us all the time but which we often fail even to notice. He was deeply interested in wildlife and [co-]wrote a book about Indian butterflies.

Dada also tried to do everything possible to eradicate the superstition that surrounds animals like snakes. I remember an incident he once narrated where he described how he convinced villagers in some small peripheral village in Maharashtra that the green tree snake does not kill people by landing on their heads from tree tops. In fact, it cannot do so: it's head is soft and feels a lot like rubber."

He'd been an officer of the Raj who stayed behind in India after Independence, and who brought up several Indian children. A friend once told me that they broke the mould after they made Dada; I'm inclined to agree.

September 22, 2016

Concerns: The Expansion of Abortion Rights


The decision of the Bombay High Court in the case of High Court On Its Own Motion vs The State Of Maharashtra decided on 19 September, 2016, has been widely spoken of as a progressive decision, and in many ways it is although it does also leave some questions unanswered.

Para14. reads: "A woman's decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman. An abortion is a carefully considered decision taken by a woman who fears that the welfare of the child she already has, and of other members of the household that [sic] she is obliged to care for with limited financial and other resources, may be compromised by the birth of another child. These are decisions taken by responsible women who have few other options. They are women who would ideally have preferred to prevent an unwanted pregnancy, but were unable to do so. If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman's bodily integrity and aggravates her mental trauma which would be deleterious to her mental health."

The recognition of a woman's right to make decisions about her own body and whether or not to have a child is, of course, progressive. What isn't entirely clear is why, despite this recognition, the Court itself seems to have effectively differentiated between women. It states, in Paras. 12 and 13: "As per Explanation 2, if the pregnancy is accidental on account of failure of device or method used by married woman or her husband for the purpose of limiting the number of children, then the said pregnancy if unwanted, it may be presumed to constitute grave injury to mental health of the pregnant woman. [....] We need to interpret Explanation 2 which is restricted only to a married couple. However, today a man and a woman who are in live-in-relationship, cannot be covered under Explanation 2 whereas Explanation 2 should be read to mean any couple living together like a married couple."

The Court has clearly read "married women" in Explanation 2 to include women who are in live-in relationships. Perhaps the wording of the law prevented an even more expansive reading in the Court's eyes but this hasn't been made clear in the decision, and the question of whether the Court's expansive interpretation of who would fall under the provision related to "married women" remains although it appears that the expansive interpretation adopted by the Court is limited to women in live-in relationships even though the Court, immediately after articulating its reading states: "A woman irrespective of her marital status can be pregnant either by choice or it can be an unwanted pregnancy."

As such, the expansive reading by the Court sets up two categories of unmarried women on the basis of their domestic arrangements: those in live-in relationships on one hand, and, on the other hand, those who are not in live-in relationships whether or not they are in relationships at all. It isn't entirely clear why this has been done, and whether the differentiation between various kinds of unmarried women based on their domestic arrangements can be considered to be fair and constitutional especially given that it potentially accords diminished access to abortion to unmarried women who are not in live-in relationships.

Strangely, the decision clearly intends to accord the same abortion rights to all women but still differentiates between women itself. It states, in Para. 16: "Women in different situations have to go for termination of pregnancy. She may be a working woman or homemaker or she may be a prisoner, however, they all form one common category that they are pregnant women. They all have the same rights in relation to termination of pregnancy."

What is troubling is that the decision of the Court appears to hinge on the rights which should be granted to women viewed through, one might suspect, a patriarchal lens. There appears to be no conception of women who may become pregnant without being in a committed relationship and without being raped, and the Court voices an age-old conception of the devastating effect of rape stating, without explaining what the basis of the statement is, in Para. 12: "If pregnancy is due to rape, then there is bound to be complete mental break down of a victim." What a woman could be subject to by law on account of a 'complete mental break down' which is simply assumed to exist by the Court, if the assumption were to be carried over to other contexts such as to determine a woman's competence to contract, doesn't bear thinking. Further, it is also unclear if reading marital relationships to include live-in relationships is an interpretation susceptible to being applied in other contexts (potentially generally making, for example, the rape of one's live-in partner non-criminal through a similar expansive reading being made applicable to the marital rape exemption in the Penal Code).

As such, the decision of the High Court takes abortion law several steps forward when it is considered in broad strokes. However, the devil, as they say, is in the details, and it appears that the decision has the potential to have unpleasant and unintended consequences for some women, and possibly not just women in prison in relation to whom the decision has been drafted.

May 01, 2015

What Indian Criminal Law Says of Marital Rape

The law does recognise marital rape. The concern is that the law does not adequately recognise marital rape as a crime. Under civil law, the Protection of Women from Domestic Violence Act, 2005, recognises sexual abuse as a form of domestic violence and, consequently, it recognises marital rape as a legal wrong, Under criminal law, the Indian Penal Code, 1860 (last amended in 2013), recognises the possibility of a man raping his wife only to promptly clarify that such rape within a marriage would not generally be considered to be rape for the purposes of Section 375 of the IPC which defines the offence of rape.

‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape’ reads the second exception to Section 375 of the IPC. In essence, a wife who is not under 15 cannot be raped as far as this Section is concerned. If the IPC Section were to be read in conjunction with the Protection of Children from Sexual Offences Act, 2012, (or POCSO as it is called), it is possible that the law could be interpreted to make the rape of a wife between the ages of 15 and 18 a criminal offence through Section 42A of POCSO. However, there is at least one occasion on which a Delhi Court appears to have refrained from interpreting the law in that manner. (See State v Suman Dass, Patiala House on August 17, 2013.)

The relevant Sections of POCSO, which deal with the precedence of laws are:
42. Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 3540,370, 370A, 375, 376, 376A, 376C, 3760, 376E or section 509 of the Indian Penal Code, then, notwithstanding 45 of 1860, anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree. 
42A. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.

The law is not, however, completely unconcerned about the possibility of a man raping his wife. A separate offence is contained in Section 376B of the Indian Penal Code which deals with the marital rape of a wife who is separated from her husband.
376B. Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine. Explanation.-ln this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375.

Invoking Section 376B of the IPC is no easy matter though: the Section is buttressed by Section 198B of the Criminal Procedure Code which unequivocally states in relevant part: 'No Court shall take cognizance of an offence punishable under section 376B of the Indian Penal Code where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the husband,'

There is a Section in the Evidence Act, Section 114A, which states that in certain prosecutions for rape, 'where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent'. This presumption applies only in very specific cases of aggravated rape (listed in Section 376(2) of the IPC such as rape by a police officer in a police station to which he is appointed) and does not apply either to rape generally or to any of the offences defined in Sections 376A to 376E including the marital rape of a separated wife. In short: with reference to marital rape, there is currently no presumption which favours women.

As such, as far as marital rape in criminal law is concerned, in effect, except in the case of the separated wife, only the marital rape of a wife under the age of 15 is explicitly a crime. The marital rape of a wife between the ages of 15 and 18 may be criminal depending on how POCSO is interpreted. And the marital rape of an unseparated wife over the age of 18 is not recognised as a crime in and of itself. It may be considered to be assault but, then again, assault is not rape.

Further, although Section 498A of the Indian Penal Code does deal with cruelty against a wife, 'cruelty' (the 498A understanding of it, anyway) is not guaranteed to consider allegations of marital rape. For example, although the factual matrix isn't crystal clear from the decision, in Crl.M.C No.1628 of 2013, the Kerala High Court stated:
"[....] Initially the Prosecution registered a case against the petitioner/accused alleging offences under Sections 376, 342 and 506(2) I.P.C. Later, when it was established that the petitioner/accused had married the defacto complainant, the offences of rape and wrongful confinement were deleted. Now, what is remaining is only an offence under Section 498A I.P.C. [....] I have carefully gone through the materials in the records which show that the predominant allegation raised by the defacto complainant against the petitioner is that he has deserted her and failed to provide maintenance to her. Absolutely no allegation of physical or mental cruelty meted out to her is mentioned in the statements. Therefore, learned counsel for the petitioner contended that the prosecution is an abuse of the process of the court. Going by the allegations raised by the defacto complainant, it can be seen at the most that she is entitled to seek relief for maintenance. However, the prosecution under Section 498A I.P.C is without any legal justification."

Marital rape may be recognised under Section 377 of the IPC as it was in the case of State v. Vinod Saini decided on March 3, 2014 by Dr. Kamini Lau in Delhi's Rohini Courts. However, Section 377 which deals with 'unnatural offences', as the statute calls them, does not contain a marital rape exception comparable to that in Section 375 of the IPC. As such, while it may be possible for a court to recognise some forms of marital rape as criminal offences if they fall within the scope of Section 377, as a general rule, statutory constraints would prevent a court from recognising marital rape per se directly.

If at all a court were to recognise the marital rape of an unseparated wife over the age of 18 under current law, it would have to do obliquely via Sections dealing with such things as cruelty, although there is no guarantee that any court would in fact do so.

(Most of the Sections mentioned in this blogpost are contained in the 2013 amendments to criminal law.)

April 19, 2015

On Making 498A IPC Compoundable and the Stats supporting the Proposal

Just how are the stats specifying the percentage of alleged misuse of 498A, IPC, being derived?!

In support of proposals to amend Section 498A, there seem to be stats doing the rounds of the number and percentage of supposedly false cases. Some time ago, ToI published a table in an article claiming that 10% of dowry cases are false. The table was attributed to NCRB, and the same figures seem to have appeared in another piece, this time attributed to a 'senior official'.

The Asian Age, too, published a piece against the proposed amendment of 'dowry law', stating that the Union Minister of State for home Haribhai Chaudhary had cited the same figures in the Lok Sabha although this statement doesn't appear to find mention in the uncorrected Lok Sabha debates of the day. The piece in the Asian Age pointed out that there's no mention of what the stats are based on; if they're based on acquittals, they mistakenly equate an acquittal with proof of the relevant case having been false.

Source: ToI, March 22, 2015

Source: ToI, April 19, 2015

Source: Asian Age, April 9, 2015



From published NCRB stats, it's unclear how it's possible to come up with any figures at all to determine the percentage of false cases assuming a 'false case' is defined as a 'case filed sans any basis'. Apart from concerns about methodology: NCRB stats only list the most serious offence where more than one offence is involved, the stats also seem to do such things as list mistake of fact or law together, as well as discharge and acquittal, making it impossible to determine what the percentage of of false cases actually is.

Sources: Table 4.3 and Table 4.9


Background note:

The desire to have 498A be compoundable is not new.

The SC though does seem to have made 498A compoundable in Jitendra Raghuvanshi & Ors. v. Babita Raghuvanshi & Anr. on 15 March, 2013 although the value of the judgment as a precedent is unclear.
"11) The inherent powers of the High Court under Section 482 of the Code are wide and unfettered. In B.S. Joshi (supra), this Court has upheld the powers of the High Court under Section 482 to quash criminal proceedings where dispute is of a private nature and a compromise is entered into between the parties who are willing to settle their differences amicably. We are satisfied that the said decision is directly applicable to the case on hand and the High Court ought to have quashed the criminal proceedings by accepting the settlement arrived at.
12) In our view, it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non-compoundable, if they relate to matrimonial disputes and the court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings."

This judgment came a year after the Law Commission report on 498A which also suggested the section be made compoundable:
2. The Commission has reiterated the recommendation made in the 237th Report that the offence should be made compoundable with the permission of the Court. There is overwhelming view in favour of making it compoundable. Certain precautions to be taken before granting permission are suggested. However, the Commission has recommended that it should remain non-bailable. The misuse (the extent of which is not established by empirical data) by itself shall not be a ground to denude the provision of its efficacy, keeping in view the larger societal interest.