Gender Equality Watch

This monthly series by Safecity will track the latest decisions of Indian courts on women’s rights and equal access for all genders. The aim is to make the functioning of our judicial system more accessible to readers, to create a well-informed body of public opinion, and to ensure that we know our rights.

                                                                                                                              by Sanaya Patel*

                                            January 2018

1. Hadiya : Court can’t decide marriage is invalid.

Case: Shafin Jahan v Asokan KM and Ors.

Date: 23 January 2018

Coram: Dipak Misra, Chief Justice of India, A.M. Khanwilkar and D.Y. Chandrachud, JJ.

(Read the facts of Hadiya’s case in our previous post.)

Oral observations of the apex court:

The three judge bench observed that it could not rule on Hadiya’s marriage. It recognised the autonomy and free choice of a 24 year old woman to decide whom to marry. The court said that the National Investigation Agency can investigate all matters but her marriage.

This observation is a small but welcome step towards recognising Hadiya’s right as an independent citizen. The matter is now listed for hearing on 22 February.

2. Supreme Court Order: Victim’s plea against ‘Peepli Live’ Director, Farooqui, rejected.

Case: X v Mahmood Farooqui & Anr.

Date: 19 January 2018

Coram: SS. Bobde and L. Nageshwar Rao, JJ.

Facts:

In 2016, Mahmood Farooqui was tried and held guilty for raping a PhD student, under section 376 of the Indian Penal Code. The trial court sentenced him to seven years of rigorous imprisonment. On 25 September 2017, the Delhi High Court overruled the trial court’s decision, to hold that the act was consensual, and that a ‘feeble no may mean a  yes’ (refer to paragraph 78). Farooqui was acquitted.

The victim filed a Special Leave Petition* to the Supreme Court of India.

Consent under the IPC – what the Supreme Court said:

Section 90 of the IPC clearly states that consent is not consent if given under fear or misconception.

Counsel for the victim directed the court’s attention to an email sent by the victim to Farooqui, which states that she “feared something bad would happen” and consented “because of pressure and your own force physically on me”. (An extract of the letter can be found at paragraph 16 of the Delhi High Court judgment).

The apex court, however, noted that the Delhi High Court’s judgment was well decided. The court agreed that this was a case of consensual sex, and noted the following:

1. The victim responded ‘positively’ to the act, referring to her admission that she had faked an orgasm during the act. Whether or not her response (orgasm) was genuine was irrelevant because the respondent (Farooqui) could not have known it was fake. The Court noted that the victim responded to the ‘allegedly forceful act in a positive manner’, and this response did not indicate that she was afraid.
2. The victim ended her email with “I love you”. The Court asked the victim’s counsel how many such victims would say ‘I love you’ after such an incident.
3. The victim had previously engaged in consensual physical intimacy with Farooqui.

Order:

The Supreme Court dismissed the appeal, ignoring the well established notion of consent in law and the facts of the case before it. It rejected the Counsel for the victim’s submission on the absence of true consent as per s. 90 of the IPC.

It is important to note that a similar provision related to consent exists even in s. 375 of the IPC (Rape), which defines an act as rape when consent is obtained by putting a woman in fear of death or of hurt.  

The court’s observations regarding the victim’s response to the assault and her prior interaction with Farooqui are irrelevant and misplaced in light of the absence of real consent.

The apex court failed to remedy the much criticised decision of the Delhi HC. The petition was a chance for the Supreme Court to clarify the concept of consent. An unequivocal no, no matter whether it followed previous consensual acts, whether it was feeble or forceful, means no. The law is clear. It is up to judges to interpret it correctly.

3. Supreme Court Order: GST on sanitary napkins – HC proceedings stayed.

Case: Union of India & Ors v Shetty Women Welfare Foundation

Date: 22 January 2018

Coram: Dipak Misra, Chief Justice of India, A.M. Khanwilkar and D.Y. Chandrachud, JJ.

Facts:

There are two petitions against the tax on sanitary napkins under GST, one in the Bombay High Court by the Shetty Women Welfare Foundation, a Mumbai based NGO,and another in the Delhi High Court by Zarmina Israr Khan, a PhD student at JNU.

Both seek similar reliefs — (among other things) that the 12% GST on sanitary napkins be abolished. A tax on sanitary napkins amounts to holding women liable for an inherent biological process (menstruation). The high tax prevents women from exercising menstrual hygiene.

While the GST regime has exempted condoms and hearing aids from tax, the Petitioners argue that a tax on sanitary napkins is discriminatory towards women. The product is an essential commodity to ensure menstrual health, and menstruation is not a matter of choice.

Equality and the Constitution: why is this tax discriminatory?

Article 15(1) of the Constitution of India mandates that the State will not discriminate against citizens only on the grounds of (amongst other things) sex.

The effect of the tax on sanitary napkins is that it imposes an unfair economic burden on women because we menstruate. It is discriminatory by the standard set out in Article 15 because it is a tax, prima facie, on menstruating women. This is the disadvantage that the petition seeks to remedy.

Order:

The Supreme Court has ordered a stay on both proceedings in the High Courts, and a date for hearing the petition will soon be issued.

Read:

1. Why Should Women Pay #LahuKaLagaan? (The Quint, 18 April 2017)
2. Campaigners refuse to throw in the towel over India’s ‘tax on blood’ (The Guardian, 19 April 2017)
3. Does a tax on sanitary pads violate Article 15(1) of the Constitution? (Gautam Bhatia, 22 April 2017)
4. Statement by the Ministry of Finance on the GST on sanitary napkins (10 July 2017)
5. International Institute for Population Sciences (IIPS) and ICF. 2017. National Family Health Survey (NFHS-4), 2015-16: India. Mumbai: IIPS. (More specifically, Table 4.10 on Menstrual Protection, at page 98.)

4. Delhi High Court: On the constitutionality of marital rape.

Case: RTI v Union of India, All India Democratic Women’s Association v Union of India

Coram:  Acting Chief Justice Gita Mittal,and C. Hari Shankar, J.

Facts:

Petitions challenging the legality of marital rape under the IPC and the Constitution of India are currently being heard by the Delhi High Court.

Exception 2 of s. 375 of the IPC provides for an exception in case of married couples. The exception 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.

This exception was read down by the Supreme Court in Independent Thought v Union of India, where the court held that sexual intercourse with a woman below the age of 18 amounts to rape.

While this is good news, the exception to married women is still a faulty loophole in the IPC which must be declared unconstitutional.

The unconstitutionality of marital rape

The petitioners submit that marital rape is unconstitutional under the following provisions:

1. Article 13 – Laws that are inconsistent with fundamental rights laid down in Part III of the Constitution are void ab initio. Marital rape violates the fundamental rights of married women, and the court has the power to strike the IPC exception down.
2. Article 14 – Equality before law and equal protection of the law are guaranteed to every person in India. Article 14 allows for reasonable classification of people based on intelligible differentia. The IPC exception makes an distinction between women based on their marital status (unmarried, married, or separated). Women raped by men who are not their husband are protected by law. Women raped by men who are their husbands are unprotected. This sexual assault is deemed legal. This classification on the basis of marital status is arbitrary and unreasonable.
3. Article 15(1) – The State shall not discriminate between citizens solely on the ground of (amongst other things) sex. The law currently assumes the non-retractable consent of women who are married. An assumption that perpetual consent to sex is the automatic or natural consequence of marriage undermines the equal status of a husband and wife, undermines the autonomy of a woman.
4. Article 19(1)(a) – All citizens have the right to free speech and expression. The law as it stands, does not allow married women to say no to sexual intercourse with her husband.
5. Article 21 – Right to life and personal liberty. A woman’s right to sexual autonomy and bodily integrity and dignity flows from her right to life and personal liberty. Rape is a violation of her fundamental right to liberty, dignity, and free choice.

Government’s response: married women are protected under s. 498A, court cannot create new offences

The Government’s submissions against the criminalisation of marital rape are twofold:

• That rape is already covered under s. 498A of the IPC.

498A speaks of cruelty likely to drive a wife to commit suicide or which results in grave injury or danger to life, limb, or mental or physical health. The Government contends that the effect of sexual violence must be given weight, and further that there must be a shift from viewing rape not as sexual penetration, but as sexual violence.

In taking this stance, the government trivializes the issue. It disregards why a separate, specific provision for rape exists in the first place. Rape is clearly defined in s. 375. Further, the punishment for rape is much higher — seven years to life under s. 376 of the IPC, whereas the punishment under s. 498A extends to a maximum of three years. The reason for recognizing rape as a specific offence and providing a higher punishment is that the crime is widespread and requires this level of protection by the law.

• That the court cannot create a new offence by criminalising marital rape.

The government submits that the court will have to strike down the entire section (375) if it finds that the exception is unconstitutional.

This view is erroneous because the Constitution contains a provision for the court to exercise its power under Article 13. Where any part of the law is inconsistent with the fundamental rights in Part III, such a law or part of the law is void or inoperative. The offence already exists within the main part of s. 375. S. 375 would remain to be operative, while the inconsistency, ie – exception 2, would be struck down.

The judiciary is the ultimate protector of our fundamental rights, it cannot create new offences, but it must strike down any law inconsistent with the fundamental rights guaranteed by the Constitution. There is no requirement for Parliament to amend the law.

We will continue to track this case, as the court hears the matter.

* As per Article 136 of the Constitution, a Special Leave Petition is an appeal to the Supreme Court, which can be filed against any judgment or decree or order of any High Court /tribunal in the territory of India

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