HomeTable of Cases and Legislation

TABLE OF CASES

Anurag Soni v. State of Chhattisgarh [2019] Cr. Appeal No. 629 of 2019.

 Aveek Sarkar and Anr v. State of West Bengal and Anr [2014] 4 SCC 257

 Independent Thought v. Union of India [2017] Writ Petition (Civil) No. 382 of 2013.

Navtej Singh Johar v. Union of India [2018] 1 SCC 791.

Regina v. Hicklin [1868] L.R.3.Q.B 360.

Tukaram v. State of Maharashtra [1979] 2 SCC 143.

TABLE OF LEGISLATION

 Indian Penal Code [1860], No. 45

Criminal Law (Amendment) Act [2013], No. 13

Criminal Law (Second Amendment) Act [1983]. No. 46.

Criminal Law (Amendment) Act [2018] No. 22

Regulation of sexuality through criminal law

If we look into the IPC 1860, we find certain acts, which are not necessarily harmful to others, to be offences. In my opinion, these acts are those acts which the State, and not necessarily the public find to be immoral as it goes against patriarchal and hegemonic order promoted by the State.

Rape

Rape under Section 375 of the IPC, as it stands today, does not restrict itself to merely sexual intercourse, but various other sexual acts which goes against the will or without the consent of the woman.

The section also provides that if the given sexual acts are committed with a girl below the age of eighteen, it is rape irrespective of consent.

If the sexual acts are done when a woman is incapable of communicating consent, it is rape.

  • Consent under Section 375 IPC, consent is “an unequivocal voluntary agreement” where the woman expresses her will to participate either verbally or non verbally through gestures and other forms. It also provides that physical resistance is not a must to show unwillingness.
  • However, if the sexual acts are with one’s own wife, above the age of fifteen, it is not rape.
Outraging the modesty of a woman
  • As per Section 354 IPC, it is an offence to assault or use criminal force to a woman, with the intention or knowledge that it is likely to outrage her modesty.
  • Through the insertion of section 354A, 354B, 354C and 354D by the Criminal LAw (Amendment) Act 2013, sexual harassment, intention of disrobing a woman, voyeurism and stalking respectively are now offences under the IPC.
‘Sexual Intercourse’ and rape law
  • The common law idea of sexual intercourse was what was incorporated under Section 375 of the IPC in 1860. Initially Section 375 IPC, was only restricted to sexual intercourse, or to say “heterosexual intercourse involving penetration of the vagina by the penis.” (Merriam Webster).
  • The Criminal Law (Amendment) Act 2013 broadened the definition of rape by including other sexual acts by a man, and not just sexual intercourse.

Consent
  • Age of consent: The Criminal Law (Amendment) Act 2013 raised the age of consent from sixteen to eighteen. However, the increase in the age of consent was not approved by several activists and even the J. S Verma committee report on Amendments to Criminal Law. The Committee report had suggested reducing the age to sixteen in order to not criminalize consensual acts between two individuals who are above sixteen and have the maturity to know the nature of their actions.
  • Fraudulent consent: Under Section 375 IPC, consent obtained by fraudulent modes like misrepresenting himself to be the husband, or by intoxication is not consent and will be considered as rape.
  • Consent obtained on a false promise of marriage: In Anurag Soni v. The State of Chhattisgarh, the Supreme Court, while convicting the accused for rape, held that a false promise of marriage is when the person giving the promise from the beginning never intended to marry the girl, and consent arising due to such a false promise will be consent given on a misconception of fact as under Section 90 IPC, thus the consent will be invalid.
Marital Rape
  • The 172nd Law Commission Report in 2000, was against the deletion of exception of sexual intercourse by a husband with a wife, although it did suggest that the age of the girl should be raised to sixteen. The reason given was that such deletion “may amount to excessive interference with the marital relationship.”
  • The J. S Verma Committee had suggested the insertion of an explanation under section 375 IPC stating that a marital relationship cannot be an excuse for presuming consent but the same was not included in the Amendment act.
  • In Independent Thought v. Union of India, the Supreme Court held that under the exception of sexual intercourse by a man with his wife in Section 375 IPC, the age of the wife should be increased to eighteen years.
Landmark Amendments

 

Criminal Law (Second) Amendment Act 1983:

  • Insertion of Section 114A in the Indian Evidence Act 1872: It stated that there will be a presumption as to the absence of consent if sexual intercourse is proved and the girl says that she did not consent in certain cases of rape.
  • Insertion of punishment for custodial rape: The Act came into existence after the highly criticised and problematic judgement in the Mathura rape case. In this case, a young girl was allegedly raped by two police constables in the police station. The Supreme Court held that there were not any injury marks, which showed that the girl did not resist. Moreover, it also held that the girl cannot be in a state of fear as she was taken away in the presence of her loved ones. Thus, since there was no sufficient proof, the accused was acquitted.

Criminal Law (Amendment) Act 2013:

  • Criminalization of sexual harassment, disrobing with intention, voyeurism and stalking through insertion of sections 354A, 354B, 354C and 354D.
  • Broadened the definition of rape by including sexual acts other than sexual intercourse.
  • Raised the age of consent to eighteen years.
  • Consent defined as “an unequivocal voluntary agreement.”
  • Life imprisonment or minimum twenty years punishment for accused who leaves the victim in a vegetative state after raping her through insertion of section 376A.
  • Reform in rape laws and the definition of rape was an urgent need after the brutal gangrape of a girl in Delhi, famously known as the Nirbhaya case in 2012.

Criminal Law (Amendment) Act 2018:

  • Minimum punishment for rape increased to ten years under section 376(1) IPC.
  • Insertion of Section 376(3): Minimum twenty years punishment or life imprisonment for raping a girl below the age of sixteen.
  • Insertion of Section 376AB: Addition of death penalty for committing rape on a girl below the age of twelve.
  • Insertion of Section 376DA: Life imprisonment for gangrape on a girl below the age of sixteen
  • Insertion of Section 376DB: Life imprisonment or death penalty for gangraping a girl below the age of twelve.

Section 377 IPC:

  • Section 377 IPC criminalizes homosexuality, and the justification given by the IPC is that it is ‘unnatural’.
  • The Navtej Singh Johar v. Union of India, which decriminalized homosexual sex, took the help of Ambrosino’s article to understand what exactly is ‘natural’. Ambrosino had said, “Our minds (the things looking) are determining what to make of nature (the things being looked at). Nature doesn’t exist somewhere “out there”, independently of us- we’re always already interpreting it from the inside.”

Contempt of courts

Obscenity
  • As per Section 292(1) of IPC, an obscene object is that which corrupts the mind of the person receiving the object by being too ‘lascivious’ or sexual in nature.
  • The essence of Section 292(2) is that if a person has an obscene object and intends to make it publicly available by sale, distribution, hire, import, export etc, will be liable for punishment.
  • The section will not be applicable if such an object is used for education or learning purposes, religious purposes or engraved in an ancient monument.
  • Section 293 IPC states that if a person makes such an obscene object available to a person below the age of twenty, he is liable for a minimum punishment of three years and maximum of seven years.
  • As per Section 294 IPC, obscene acts, songs and words, done, sung or recited in a public place capable of causing annoyance to others will be punishable with three months imprisonment.
  • In Regina v. Hicklin, the test of obscenity was held to be, “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such influences, and into whose hands a publication of this sort may fall.”
  • In Aveek Sarkar and Anr v. State of West Bengal and Anr, the Supreme Court held that, “obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.”
  • Thus, an objective perspective, rather than a subjective one is taken by the Supreme Court of India.
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