On 22 January 2013, a day before we were due to submit our report, we were still debating whether the crime of rape should be gender-neutral or gender- specific. When I had helped draft a bill regarding sexual offences for the 172nd Report of the Law Commission, of which I was a member, we had made rape gender-neutral, which meant that the perpetrator could be ‘any person’ and the victim could also be ‘any person’. This was the modern approach and based on the principle of equality. (This was also the accepted position in Bill No. 130 of 2012, pending in the Lok Sabha.) But there was considerable weight of opinion pressing for this offence to be made gender-specific, that is, the perpetrator should be a man and the victim a woman. After a great deal of brainstorming with our young team we arrived at a consensus: though the perpetrator was identified as a man, the victim was to be categorized as gender-neutral, thus covering males, females, and transgender persons. Professor Mrinal Satish and Shwetasree Majumdar who were helping us draft the bill had to rework it extremely quickly.

The government ordinance issued immediately after our report was submitted kept the offence gender-neutral with regard to both perpetrator and victim, but when the Criminal Law (Amendment) Act, 2013 (hereafter referred to as Act 13 of 2013) was passed by Parliament, it made the offence of rape gender-specific with regard to both perpetrator and victim. It did not accept our in-between position, which effectively extended protection to males and transgenders. In my view this was a serious mistake, and Parliament failed to understand the injustice done thereby to so many men and transgender people.

Another issue was the age categorization of a minor accused in such cases. One of the main offenders in the Nirbhaya case was a 17-year-old, a minor who could be only tried by the Juvenile Justice Board rather than having to undergo the rigour of trial and suffer severe punishment by court. Consequently there was a great deal of debate about categorizing minors as those below the age of 16 rather than the current 18. Though the enactment of a criminal offence is not given retrospective effect and would not have affected the minor accused in Nirbhaya’s case, it was argued that a large number of rapes were committed by persons between the ages of 16 and 18 who should be brought within the ambit of the criminal law and punished accordingly.

While we studied this aspect of the matter, we also examined others, such as the neurological state of an adolescent brain, which undergoes significant changes in structure and function during the period of transition to adulthood...

Having examined all these aspects, we concluded that no change in the law was required. We recommended that the Juvenile Justice Act be implemented in both letter and spirit. The government accepted this position and the age for minors was not reduced in Act 13 of 2013.

Then came the issue of the extent of punishment. We were against castration or death—which were suggested by various people—as punishments for various reasons detailed in our report. However, our standpoint that even the most grievous offence of rape did not require the imposition of the death penalty was not accepted by the government. We were of the view that punishment for life, meaning the whole of life, would be sufficient and that the punishment of death already existed in the Indian Penal Code in the case of murder. (Nirbhaya had since died in Singapore, where she had been sent by the government for better medical treatment.)

Another hotly debated issue was that of marital rape. This has to be looked at from a historical perspective and the principle of patriarchy. The offence of rape was originally based on the idea of theft of a man’s property. According to the old-fashioned notion on which the law was based, a woman belonged first to her father and, after marriage, to her husband. So if anyone had sexual intercourse with her before marriage, the father’s honour was affected and, after marriage, the

husband’s. According to the English common law of coverture, a woman was deemed to have consented at the time of marriage to having intercourse with her husband at his whim. In 1736, Sir Matthew Hale declared that a husband could not be guilty of rape on ‘his lawful wife, for by their mutual matrimonial consent and contract’ she had agreed to this and this consent ‘she cannot retract’.

The situation has changed drastically since then. A woman’s autonomy and bodily integrity are concepts that have developed over the years, thus making rape an offence unless there is true consent—not merely consent by legal fiction.

In England in 1991, Lord Keith, speaking for the House of Lords, declared that ‘marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband’. The European Commission of Human Rights also endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim. The very essence of the Convention on Human Rights is derived from respect for human rights, dignity and freedom.

In South Africa, marital rape was criminalized in 1993. In Canada, too, it is a crime to rape one’s wife. In Australia, in 1991, the common law fiction of irrevocable consent was roundly rejected by Justice Brennan who said it ‘has always been offensive to human dignity and incompatible with the legal status of a spouse’...

Despite our strong recommendation, the government did not agree to make marital rape a crime. Many voices, especially those of men, were raised against it, saying that, if implemented, it would be misused. ...

Unfortunately the law was not changed by Act 13 of 2013 and the marital exemption has been retained. Exception 2 in Section 375 of the Indian Penal Code reads: ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.’

Excerpted with persmission from Aleph Book Co. from Talking Of Justice: People’s Rights In Modern India (214 pages; 500).

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