Friday, July 29, 2016

An Unnatural, Exceptional Confusion

Guest Post by Abhinav Sekhri and Devdutta Mukhopadhyay

A little storm is brewing in the Delhi High Court. A bench of two judges (Chief Justice G. Rohini and Justice Sangita Dhingra Sehgal) issued notice to the Union of India seeking a clarification on apparent contradictions between Section 375 IPC and Section 377 IPC. According to news items, the issue arose in a petition filed by a husband against orders of a court charging him under Section 377 IPC on a complaint filed by his wife. The lower court discharged the husband for offences under Section 375 IPC citing Exception II, the exception commonly labelled ‘marital rape’. Now, the news is unclear on the exact plea taken by the husband, but it seems he is arguing that a similar exception be created for Section 377 IPC as acts that are non-criminal under Section 375 IPC remain criminal under Section 377 IPC. In this post we’ll trace through the changes brought about in 2013 before examining the nature of this unnatural, exceptional confusion that has seemingly crept in.

Section 375 IPC and Marital Rape: Before and After 2013

Section 375 IPC was based on ‘sexual intercourse’ with a woman before the amendment in 2013. If this was conducted in circumstances that fell within six defined descriptions, it would be rape. These descriptions were hinged on the lack of consent and/or lack of will on part of the woman. The offence had one exception, stating that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. [emphasis supplied]”

The 2013 amendment notably broadens the contours of this provision. The clearest determinant of this is the removal of ‘sexual intercourse’ as the barometer of what acts may constitute rape. Instead, we have four different kinds of sex acts that if committed in circumstances falling within any of the seven descriptions would constitute rape. The exceptions also increased from one to two. Reflecting the amended definition of rape, Exception II now 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. [emphasis supplied]” It is disheartening to see how the legislature on the one hand willingly adopted recommendations made by the Justice Verma Committee in widening the offence, but on the other hand rejected the recommendations for abolishing the marital rape exception and instead proportionately widened its scope without any convincing justifications.

Reading Section 375 IPC with Section 377 IPC

The ‘battle’ to remove Section 377 IPC from the statute book has garnered much attention over the previous decade in India. This provision criminalises ‘unnatural offences’: “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished …”. Let’s compare this with Section 375 IPC. Two sets of differences that survive the 2013 amendments are that (i) Section 377 IPC is unconcerned with issues of will and/or consent, and (ii) Section 377 IPC extends to acts with men, women or animals as against Section 375 IPC which can only have women as victims. One difference that was abolished in 2013 was of language. Pre-2013, Section 375 IPC spoke of ‘sexual intercourse’, whereas Section 377 IPC used ‘carnal intercourse’. We argue this is important and will return to it later.

The legal and moral validity of the offence under Section 377 IPC is challenged by bringing attention to the vague and ambiguous words adopted to denote a standard. There is no reported discussion on the kind of acts covered by ‘carnal intercourse against the order of nature’ because the framers found it too repulsive to discuss. While that might have been acceptable in the early and middle 19th century, it should strike any reasonable person in the 21st century as slightly odd when considering that this phrase can send persons to prison for a life term. After all, social mores have obviously undergone tremendous change over the last 150 years. The courts have attempted to fill these words with meaning, but that exercise has been a poor substitute for an authoritative explanation from a legislature – either colonial or independent. This came to a head in Suresh Koushal v. Naz Foundation [(2014) 1 SCC 1] where the Court noticeably changed the meaning of the test in Section 377. Discussing this serves proceed with examining the issues troubling the Delhi High Court.

The New 377 – A Floating Judicial Sword against Injustice

The Supreme Court examined the constitutionality of Section 377 IPC in Koushal (supra) and found it was valid law. The decision generated voluble discontent and further litigation (most recently in a Special Leave Petition by ‘celebrities’). But this is not the place to discuss those issues and we will move on by stating that we disagree with the conclusions arrived by the Court. What is important for this post is the interpretation of the standard ‘carnal intercourse against the order of nature’.

At paragraph 59 of Koushal (the SCC version), the Supreme Court neatly condenses how the understanding of the test in Section 377 IPC has continuously changed at the hands of the judiciary. Initially, Section 377 IPC was seen as criminalising ‘non-procreative’ acts [Khanu v. Emperor, AIR 1925 Sind 286], which then moved to include acts ‘imitative of sexual intercourse’ [Lohana v. State of Gujarat, AIR 1968 Guj 252], and later extended to acts displayed ‘sexual perversity’ [Fazal Rab Shoudhary v. State of Bihar, (1982) 3 SCC 9]. Using E.H. Carr’s analogy of the fishmonger’s slab, the Court at paragraph 60 uses these pieces of raw fish to cook up an unseemly broth:

In our opinion the acts which fall within the ambit of Section 377 IPC can only be determined with reference to the act itself and the circumstances in which it is executed. All the aforementioned cases refer to non-consensual and markedly coercive situations and the keenness of the Court in bringing justice to the victims who were either women or children cannot be discounted while analysing the manner in which the section has been interpreted. We are apprehensive of whether the court would rule similarly in a case of proved consensual intercourse between adults. Hence it is difficult to prepare a list of acts which would be covered by the section. Nonetheless in light of the plain meaning and legislative history of the section, we hold that Section 377 IPC would apply irrespective of age and consent. It is relevant to mention here that Section 377 IPC does not criminalise a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of sexual identity and orientation.

In the first part of this paragraph, the text of Section 377 IPC is unceremoniously given a go-by and is replaced with a very good imposter for a common-law offence. The Supreme Court replaced the originally vague test of ‘against the order of nature’ with an upgrade with the “keenness of the Court in bringing justice”. Consent, a concept notably absent from Section 377 IPC, is inserted as a means of deciding when the Court should be keen to do justice. Same sex acts between men, again envisaged in Section 377 IPC and in no small measure the focus of the case itself, are hidden with a sleight of hand that brings women and children to the fore.

Before one can digest this, though, we are thrown back to the text and reminded that the provision applies irrespective of consent. So how do we square these apparently contradictory strands of thought? Our answer is that the latter half of the paragraph is the Court’s response to the Article 14 challenge levelled against Section 377 IPC, whereas the former is a window into how the Supreme Court sees Section 377 IPC work in practice. A fine tightrope, this.

Coming to the Unnatural, Exceptional Confusion

Which finally brings us to 2016 and the case before the Delhi High Court. The amended definition of rape under Section 375 IPC has the potential, today, to include procreative acts, non-procreative acts, acts imitative of sexual intercourse, as well those displaying sexual perversity. Where parties to the sex act are a man and woman, one finds that the set of acts classically associated with Section 377 IPC will be subsumed within Section 375 IPC itself. This is what, possibly, drives the petitioner-husband to argue for extending the rape exception to a marital ‘sexual act’ exception which covers Section 377 IPC as well.

One could argue the ‘marital rape’ exception was only designed to permit procreative sex – an argument that fits the bill for the Victorian morality the exception propagates. The original drafting of Sections 375 and 377 IPC having used ‘sexual intercourse’ and ‘carnal intercourse against the order of nature’ could then be used to support this argument. Because the former has been interpreted by the Indian judiciary to mean peno-vaginal or procreative intercourse. But as we know, exception moved beyond ‘sexual intercourse’ in 2013, taking away the legs of this argument. Even if the scope of Section 377 IPC was construed to only mean non-procreative sexual acts, again differences could be drawn. But Section 377 IPC is a judicial sword today, with a focus on consent, pace Koushal. Well, maybe without a focus on consent, but a judicial sword nonetheless. Unintentionally then (for marital rape was not discussed in any capacity by the Supreme Court), we find that it can make sense to argue for the extension. The marital rape exception deems consent to always exist in matrimonial sex, and this existence of consent defuses the ‘judicial keenness’ that Koushal places as the trigger for an act to be labelled an offence under Section 377 IPC.


All this would still remain insufficient to actually support any extension of the exception. The argument ignores a basic premise that context drives crime. The same act can be the basis for more than one offence. For instance, an act of demanding dowry can be an offence under the Dowry Prohibition Act, 1961 as well as an offence under Section 498-A IPC. Having the same acts as an offence under Sections 375 and 377 IPC does not automatically mean exceptions for the former extend to the latter. This possibility of the same set of acts/omissions constituting multiple offences has been countenanced as far as back as 1897 in Section 26 of the General Clauses Act.

This petition still provides a unique opportunity to the High Court. It could, perhaps, make stern observations and hold that the marital rape exception does not withstand constitutionality. Importantly, it could point out the contradiction posed by the marital rape exception when read together with the Protection of Children from Sexual Offences (POCSO) Act 2012. The IPC ‘excepts’ rape with a wife above 15 years of age, but the 2012 Act criminalises sexual acts with ‘children’ who constitute persons below 18 years of age (notwithstanding the provisions of Section 42A of the POCSO). It could also clear the air over the position of consent in Koushal. To recapitulate, we argue that the decision suggests Section 377 has been attracted, and should be attracted, in situations of non-consensual sexual acts. It would be interesting to see what developments are made.

Abhinav Sekhri is an advocate currently practising in Delhi. He also blogs at Devdutta Mukhopadhyay is a current Third Year student at the National Law University-Delhi

Wednesday, July 27, 2016

Women's Right to Free Speech on Social Media

Almost every day brings to the fore some instance of abuse, harassment and stalking that women face on the internet and on social media specifically. Addressing this doesn't require more ill drafted, draconian laws like Section 66A of the Information Technology Act which was struck down by the Supreme Court for violating Article 19(1)(a) of the Constitution. There are enough laws on the book, introduced mainly after the Justice Verma Committee's report, that can be used to tackle the menace and protect women's right to free speech online. The problem however remains one of implementation - how to use these laws effectively to punish and deter those who would abuse, harass or stalk women online. This article by Alok Prasanna is a brief exploration of courses of action, specifically with reference to the recent "Cyber Cell" set up in the Union Ministry of Women and Child Development which, with a bit of imagination and intent, help in the better implementation of these laws.

Sunday, July 24, 2016

Nine-Judge Bench Examines Part XIII of the Constitution

Last week, a nine-judge Supreme Court bench began hearing appeals relating to the interpretation of Part XIII of the Constitution (Articles 301-307). This nine-judge-bench is the sixteenth time that the Supreme Court has assembled in such strength. Most earlier benches handled fundamental rights questions. This is, perhaps, the first one to examine the taxation powers of the Parliament and the state legislatures.

Article 301 was patterned on Section 92 of the 1900 Commonwealth of Australia Constitution Act. It is commonly misinterpreted by academicians and advocates. Due to Article 301's Australian origins, our Court seems to have over-relied on cases from that jurisdiction. This considerable confusion especially in the landmark Atiabari Case. 

In a detailed analysis, Rahul Unnikrishnan, a Madras High Court advocate, discusses the present reference before the Court and two earlier precedents: Atiabari and Automobile Transport.

Sunday, July 17, 2016

Housing Discrimination update: Disturbed Areas Act and Real Estate Rules

This blog has doggedly pursued the issue of housing discrimination and the need for legal regulation (see here and here). Sociological research by Sidhwani and Vithayathil & Singh add to the growing evidence of housing apartheid in urban India. Here are a few further updates on the issue.

1. While the Government was piloting the Real Estate Bill 2016 through Parliament, two Congress MPs Kumari Selja and Rajeev Gowda moved amendments to outlaw discrimination in the housing sector. They withdrew their amendment on the Minister's promise to outlaw it under the Rules. Media reports were ecstatic over the promise. The Ministry's move seems to be a damp squib: first, it seems that the central Ministry can only frame rules for Union Territories without a legislature (just as well). So, the promise only applies to a very small part of the country. Even there, the published draft Rules only mention discrimination in passing, almost as an afterthought, and are highly unlikely to have any impact. The very short timeframe for sending comments on the draft has now expired. Hopefully, next time the MPs will insist on statutory amendment rather than be satisfied by vague promises relating to statutory instruments, which are mostly beyond parliamentary oversight in any case.

2. On a related matter, just saw this news story about the Gujarat Disturbed Areas Act 1991. In the notified areas, it forbids any transfer of immovable property unless the collector is satisfied that the transfer is free and consensual. In formal terms, therefore, it seems to be a law designed to address distress sales of property by persons fleeing violence. The hyperlinked media stories appear to suggest that it is being used to prevent Muslims from buying property in 'Hindu' areas. Sounds very similar to the various Freedom of Religion Acts passed in many states, ostensibly designed to protect religious freedom, but in effect having precisely the opposite effect.

3. For readers interested in my campaign to get a comprehensive antidiscrimination legislation enacted (along with the text of a draft Bill), please see this link.

Monday, June 06, 2016

Supreme Court on Pre-Legislative Consultation

This blog has previously carried commentary on pre-legislative scrutiny on several occasions: see here, here, here and here.
A few weeks ago, on May 11, 2016, the Supreme Court delivered a judgment in the case of Cellular Operators Association of India v. TRAI, popularly known as the 'call drops' case. The case has important implications for pre-legislative scrutiny, especially pertaining to sub-ordinate legislations. The impugned sub-ordinate legislation was the Telecom Consumers Protection (Ninth Amendment) Regulations, 2015, which required that telecom service providers compensate consumers for call drops. The constitutionality of the regulation was challenged before the Supreme Court (on appeal from the Delhi High Court) on various grounds.
One of the grounds on which the challenge succeeded was the violation the requirement under Section 11(4) of the Telecom Regulatory Authority of India Act, 1997 (TRAI Act), the principal legislation. Section 11(4) states: “The Authority [TRAI] shall ensure transparency while exercising its powers and discharging its functions”.
It is important to note that the Court at the outset states that ordinarily, a legislation (principal or sub-ordinate) is not subject to the rules of natural justice. However, if the parent statute explicitly provides for it, the sub-ordinate legislation must follow such rules of natural justice. In this instance, since the parent statute provides for a ‘transparency’ requirement, it was held by the Court that the ordinary rule was not applicable.
The term transparency, however, has not been defined under the TRAI Act. Thus the Court refers to other statutes and a number of case laws to determine the scope of the ‘transparency’ requirement:
  • The Court refers to Section 13(4) of the Airports Economic Regulatory Authority Act, 2008, which provides for three requirements under the ambit of transparency: holding due consultations with all stakeholders, allowing stakeholders to make their submissions, and fully documenting and explaining decisions. The English Court of Appeal case of R v. North and East Devon Health Authority is then cited, in order to determine the scope of the term ‘consultation’. The case holds that even the product of the consultation must be “conscientiously taken into account when the ultimate decision is taken”.
  • Thereafter the Court calls attention to the RTI Act, 2005 (including Section 4(1) where every public authority is to publish the procedure followed in its decision making processes) and connected judgments to emphasize the aspect of openness in governance (in the context of transparency).
  • Crucially, the Court also cites Section 553 of the US Administrative Procedure Act, which provides that notice of rules must be served beforehand and that after hearing comments a “concise general statement” of the basis and purpose of the rules shall be published. Next, the Corpus Juris Secundum is cited in order to discuss the requirements under the Administrative Procedure Act. The Corpus Juris Secundum explains that the general statement, in a reasoned manner, is expected to respond to and resolve significant problems raised by comments received. The Court rules that TRAI was expected to follow such procedure to fulfil the ‘transparency’ requirement under the TRAI Act.

Since TRAI did not reasonably respond to comments, such as those that pointed out that consumers themselves were at fault for call drops, the regulation was struck down as ultra vires. What about those sub-ordinate legislations that have no such ‘transparency’ requirements under parent statutes? The Supreme Court recommends that the Parliament enact a legislation on the lines of the US Administrative Procedure Act, binding all subordinate legislation.
It appears that the Pre-Legislative Consultation Policy (PLCP) adopted by the Committee of Secretaries in January 2014 escaped the attention of the Court. As per the policy, all legislation, principal or sub-ordinate, must be subject to pre-legislative scrutiny. Specifically, the policy requires prior publication of the legislation, publication of an explanatory note and receipt of comments on the draft legislation. The summary of comments and the response to the comments is to be placed before the Cabinet and the relevant Parliament Standing Committee. The policy also states that all new principal legislation must provide for prior publication of sub-ordinate legislation. What is especially important is that the policy applies to all principal and sub-ordinate legislation. In other words, the PLCP applies (a) irrespective of whether the principal legislation provides for prior publication of sub-ordinate legislation and (b) even though ordinarily (as the Supreme Court holds in the above case) legislation is not subject to rules of natural justice. This progressive piece of policy ought to have been taken notice of by the Supreme Court.
- Vasujith Ram

Thursday, June 02, 2016

Reviewing Legislation under Article 14

Readers may have already heard of the excellent Oxford Handbook of the Indian Constitution edited by Khosla, Mehta and Choudhry. I have contributed a chapter on the application of Article 14 to judicial review of legislation. 

The chapter explores the two doctrines that have evolved to test the constitutionality of a measure when faced with an Article 14 challenge: the ‘classification test’ or the ‘old doctrine’ (which I have labelled ‘unreasonable comparison’) and the ‘arbitrariness test’ or the ‘new doctrine’ (labelled ‘non- comparative unreasonableness’). I show that:

(a) the classification test (or the unreasonable comparison test) continues to be applied for testing the constitutionality of classificatory rules (whether or not legislative in character); 

(b) it is a limited and highly formalistic test applied deferentially; 

(c) the arbitrariness test is really a test of unreasonableness of measures which do not entail comparison (hence labelled non- comparative unreasonableness); 

(d) its supposed connection with the right to equal­ity is based on a conceptual misunderstanding of the requirements of the rule of law; and 

(e) despite some doctrinal confusion, courts are unlikely to consistently apply it to acts of legislatures.

The chapter concludes by showing that Article 14 has become a victim of the weak ‘old’ doctrine and the over-the-top ‘new’ doctrine. The former needs expansion and substantiation, the latter relegation to its rightful place as a standard of administrative review.