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The Invisible Reasons Behind India’s Rape Epidemic

One rape case was reported every 16 minutes in India in 2019. This makes India one of the worst places to be a woman. The rise in the cases of sexual crimes in our country is undeniable. Despite the current cultural change and conversation surrounding women’s safety, India seems to be on the brink of an epidemic. This therefore, forces us to dig deep and question the reason behind India’s rape crisis- is there an increase in the crimes committed or is the number this high due to more cases being officially reported.

Due to waves of Feminism, better education and more awareness, sex has gone from a hushed topic to a more open conversation where people unabashedly talk about their experiences with sexual abuse and assaults. This comfort not only destigmatizes the sufferers of sexual violence but also brings with it a further opportunity to better understand the plight that the victims of these heinous crimes go through. Due to the attackers now being named, understanding the mentality and motives behind these crimes is also becoming easier.

To start with it is important to understand the term xenophobia. The term xenophobia is defined as the fear or hatred of that which is perceived to be foreign or strange. This can be linked to racism, discrimination, riots, wars and just violence in general. But how does this relate to a secular nation like India? India is in the midst of the largest migration the world has ever seen – the rural to urban migration. Close to 31 villagers are estimated to show up in a city every minute, over the course of the next four decades. This rapid and unprecedented transformation has led to a very violent cultural confrontation. Men from these villages, many of whom have had barely any interaction with the opposite sex other than their mothers or sisters for much of their lives, go from the age old well set caste systems and gendered roles to a place where these old traditional social systems and roles simply cease to exist. With the dawn of modernization and westernization, this leads to a lot of confusion in the minds of these young men and women. Moreover, the government provides less attention to the issues of these migrants.

Only ten percent of internal migrants are employed by the industries while the rest are forced into the informal sector where they work in the streets and live in the slums, disregarded by the state and even the society. This can lead to a sense of deepened xenophobia with these internal migrants viewing themselves as devalued and weaker i.e. more ‘feminine’. Something similar can also be seen in the society, when certain men fail to perform and match consistently to the perceptions of the dominant masculinities they are then devalued or feminized and placed under the same groups as the women. This rural to urban problem contributes as a causal factor in the accelerating rapes in India, especially in a city like Delhi. Despite this transformation being a contributor to this issue, it does not, however, conclude the discussion given the rise in the rates of rape cases within these villages as well. In a country like India where a woman is viewed as the honor of the family, especially in rural areas, a crime like rape becomes a tool for vengeance. With the government launching new schemes and programs to uplift the lower castes, aiming to get them jobs and education, we see a dispersion in the order between castes. This leads to a lot of anger among people of the higher castes who then project their power by raping women of the lower caste. The same tactics are observed in wars. Raping a woman is viewed as a means to ‘emasculate the men of the other community’.

Another alarming reason behind these crimes is India’s skewed sex ratio. With nine hundred and ten women per thousand men in 2020, India has the second lowest sex ratio after China. This may not seem like a big number but when we translate it into India’s population we see, approximately, forty million more men than women. Because of this skewed sex ratio, the age group of 17 to 35 year olds are left single without brides. The same age group is responsible for the most crime, with ninety-five percent of these men having criminal records. Historically a less female to male ratio is correlated to an increase in the number of crimes, violence, and a more patriarchal society.

Men have raped babies as well as 90-year-old women as well as men. Despite that the conversation always seems to be centered around blaming the women and her clothing. The prevalence of rape culture and unwilling to face the facts, not only heightens this victim blaming but can lead to fewer reporting of such cases. This attitude encourages the perpetrators to keep doing all the heinous things they want without being held accountable. However, we do see a positive wave of change with both men and women pointing out the flaws of the system and uniting to seek justice for victims of these crimes. While India is still in the midst of this epidemic, it is us, all of us who should question and stand up for what’s right which moves us closer to a more equal and just society.

Joseph Shine V Union of India

CASE: Joseph Shine V Union of India (2019) SCC Cri (84): 2018 SCC Online SC 1676: AIR 2018 SC 4898: (2018) 252 DLT 388: 2019 Cri LJ 1

JUDGES: Dipak Misra CJI, R.F.Nariman, A.M.Khanwilkar, Dr D.Y.Chandrachud, Indu Malhotra, JJ.

This case was initially heard before a three-judge bench headed by the then Chief Justice of India, Justice Dipak Misra. The three-judge bench (Full Bench) referred the matter to a five-judge Constitution Bench.

HISTORY: The Petitioner appealed to the Supreme Court of India.

FACTS:

Joseph Shine, the hotelier, challenged the constitutionality of Section 497 of Indian Penal Code. The main reason as to why Joseph Shine filed the writ petition was to prevent Indian men from being exploited by vengeful women or their husbands for extra marital relationships. The reason as to why the Petitioner was instigated to file the writ petition was that a very close friend of his in Kerala committed suicide after a women co-worker fabricated malicious rape charge against him.

Section 497 of the IPC reads as follows:

“497. Adultery—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

Section 198 (2) of CrPC reads as follows:

“For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”

According to Section 497, there is no legal provision for a wife to file a complaint of adultery against her husband but Section 497, says that if the husband gives his consent for the act then such an act is no more considered as a crime, thereby proving women are to be treated as an object under adultery which shows sexuality unfairness, authoritative imperialism and male patriotism. The kind of traditional framework in which Section 497 was drafted, is no longer applicable in modern society.

ISSUES:

  1. Whether Section 497 of the IPC is constitutionally valid and is it an excessive penal provision which needs to be decriminalized?
  2. Whether section 198(2) of the Code of Criminal Procedure, 1973 is violative of fundamental rights?

JUDGMENT ANALYSIS:

The CJI, Deepak Mishra held “IPC Section 497 to be unconstitutional and violative of Article 14 and Article 21 of the Constitution and that Adultery should not be treated as an offence. The CJI further added that it is also appropriate to declare Section 198 of CrPC, which deals with the procedure of filing a complaint in relation to the offence of adultery as unconstitutional. “This proves his view that wives are not the property of the husbands and husbands are not their wives’ masters and this was held by all the other judges as well.

The Supreme Court unanimously struck down Section 497 of IPC as unconstitutional and violative of Fundamental Rights under Article 14- which states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India, Article 15- which prohibits discrimination of Indians on the basis of religion, race, caste, sex or place of birth and Article 21- which talks about protection of life and personal liberty, and held that Section 198(2) of CrPC shall be held unconstitutional that  deals with filling a complaint that it is applicable to Section 497, IPC.

The Court disposed of Section 497 because it harmed the autonomy, dignity and privacy of a women. Moreover, under Section 497 the offence of adultery can only be committed by a man but in the absence of any provision to the contrary the woman would be punishable as an abettor. The last sentence in Section 497 prohibits this.  In such case the wife shall not be punishable as an abettor. It is said that this offends Articles 14 and 15. A law that takes away the right to prosecute from women, is not gender-neutral thereby taking away her fundamental right to equality. Moreover, Adultery is not just an act that merely affects two people but also has an impact on aggrieved spouse, children as well as the society thereby taking away her fundamental right to life and personal liberty by taking away the right to live and right to live with dignity. The makers of the Constitution defined their vision of the society which was a traditional society in which constitutional values would be attained by emphasizing, among other freedoms, liberty and dignity. The dignity of a person is a core element of Fundamental Rights as they are provided so that the dignity of a person remains enacted and the adultery law takes away the dignity of a woman and treats her as a commodity for men. It is the right of an individual to make his/her own choice in any field especially while choosing their partner, as it is the most intimate choice of life and should be protected. “There cannot be a patriarchal monarchy over the daughter or, for that matter, husband’s monarchy over the wife. That apart cannot be a community exposition of masculine dominance.”

Justice Chandrachud said in his judgment that “the court has evolved a jurisprudence of rights- granting primacy to the right to autonomy, dignity and individual choice. The right to sexual autonomy and privacy has been granted the stature of a constitutional right. In confronting the sources of gendered injustice which threatened the rights and freedoms promised in our Constitution, the validity of Section 497 of IPC has to be examined. In doing so the constitutionality of moral and societal regulation of women and their intimate lives through the law are also to be tested.” The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to determine what conduct requires state interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose and should examine the impact of such conduct on the society.

Criminal law must be in consonance with constitutional morality. The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, Section 497 does not pass constitutional muster.

The introduction of an amendment to incorporate the concept of equality between sexes in marriage vis-à-vis the offence of adultery was advocated by the 156th report of the Law Commission of India. It also suggested in its 42nd report that the adulterous woman must be made equally liable for prosecution.

 

DISMISSING THE APPEAL, THE COURT HELD THAT:

(i) Section 497 is struck down on grounds of unconstitutionality being violative of Articles 14, 15 and 21 of the Constitution.

(ii) Section 198(2) of the CrPC which contains the procedure for prosecution to the extent that it is applicable to the offense of Adultery under Section 497 is declared unconstitutional.

(iii) The decisions in Sowmithri Vishnu, V. Revathi and W. Kalyani hereby stand overruled.