July 19, 2018

Consent v Dominion: Sexual Offences in Indian Law

The Supreme Court is currently hearing a matter in which it is expected to determine the Constitutionality of Section 497 of the 1860 Indian Penal Code. This provision is popularly understood as one which criminalises adultery, and the IPC itself supports this understanding by calling the offence ‘adultery’. However, if the particulars of the offence it describes were considered, it would emerge that the provision is, more accurately, one which can criminalise a man who knowingly has sex not amounting to rape with a married woman without her husband's consent or connivance.

Making the provision as it now stands truly gender-neutral, as many demand, would not allow unfaithful wives to be jailed at their husbands’ behest. Instead, it would allow wives to have their unfaithful husbands’ women lovers jailed.

Although much public discourse treats IPC Section 497 as being discriminatory towards men since it cannot currently be used to jail women, it is quite firmly embedded in a worldview that treats women as the property of their husbands. These are husbands who would once, as the law earlier recognized, have had the liberty to decide when to have sex with their wives regardless of their wives’ feelings on the matter.

Current law has begun to acknowledge that this approach is problematic, and has begun to shed it. It now contains a mishmash of provisions some of which recognise women's rights and others which do not. Marital rape, for example, is recognised by the 2005 Domestic Violence Act but is still barely recognised by the 1860 Indian Penal Code despite its having been amended in 2013.

As far as IPC Section 497 which deals with adultery is concerned: if a man were to have sex with a married woman both with her consent and with her husband’s consent or connivance, her husband could potentially still be liable for having trafficked her. Although this is largely an academic possibility as it is difficult to envisage its realisation in real life, it remains a possibility because trafficking law does not require the person being trafficked to be transported anywhere for the offence to have been committed, and treats the consent of the trafficked person as being irrelevant.

Drawing on international law, the Indian Penal Code essentially defines trafficking to mean using unsavory means (such as threats, abduction, and deception) to recruit, transport, harbour, transfer, or receive one or more persons in order to exploit them. The exploitation could be physical or sexual, echo slavery, or involve forced organ donation. And the Code categorically states: “The consent of the victim is immaterial in determination of the offence of trafficking.”

This is not the formulation used in the ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime’ which, in its definition of trafficking, treats victim consent as being irrelevant only if any of the listed unsavoury means have been employed.

The IPC formulation diverges from that seen in international law and reflects the Indian social tendency to deny some people agency, particularly if they happen to be women. And, as an aside, the IPC also makes it difficult to contemplate the legitimacy of voluntary sex work not undertaken by an individual in isolation.

The failure to acknowledge a woman's consent to mitigate what would otherwise be a clearcut case of trafficking and, in other circumstances, the refusal to consistently recognise her withholding consent in what would otherwise be (marital) rape may seem unrelated. Nonetheless, they evidence a deep-seated confusion in the law about whether sexual interaction should be legitimised on the basis of ‘consent’ or ‘dominion’, in the sense that some conservative interpretations of scripture began to understand the latter term over a millennium ago.

Men, in that ancient Biblical telling, created in God's image, have God-given dominion over all the Earth's other living beings apparently including women. The understanding that men have primacy seeped into modern Indian law through statutory provisions introduced by the British to the country which, being patriarchal itself, was receptive to them. Even where we've tried to modernise the law to negate dominion, we haven't fully embraced consent as the IPC definition of trafficking shows.

The patriarchal structure of the law is finally being challenged now although it hasn't been entirely overthrown which is what has resulted in statutory confusion. In courts and beyond, we're questioning laws which criminalise homosexual acts and adultery, and which decriminalise marital rape. We're also engaging with the issue of why the crime of rape shouldn't be relationship- and gender-agnostic.  

Currently, we are at a crossroads. We can choose to cling to the laws and social norms which colonialism and conservatism have left us with, and leave women at the mercy of patriarchy along with men who do not conform to patriarchal expectations of them. Alternatively, we can choose to go down a different path in which each individual’s autonomy holds sway instead of the age-old notion that a patriarch, whether in the form of a living person or a state which exclusively upholds his desires, holds sway.

There is every indication that we will choose not to continue to discriminate against people depending on their sexual orientation and the allied choices they make. We may also see ‘adultery’ as contemplated by criminal law being decriminalised. Perhaps in the not-too-distant future, that courtesy will be extended to every adult at least in relation to their private sexual lives with no-one being subject to another's dominion and each individual's choices in regard to their own life being respected.