Next steps after the 377 judgment

It is time that marital rape is criminalised
The Supreme Court’s verdict on Section 377 should be celebrated for ejecting an ugly Victorian norm from the Indian criminal justice system. The landmark decision breaks new ground by removing restrictions that made consensual sexual relations between members of the same sex and the transgender population a crime. The judgment of the Supreme Court will, however, likely have unintended negative consequences for one group that has used Section 377 to protect itself from sexual violence — women.
What data show
While Section 377 has indeed been used as a tool to vilify and arbitrarily punish members of the LGBTQ community, it may be surprising for most to learn that an overwhelming majority of those who utilise the section at police stations are abused and physically tormented married women. Utilising new data as well as research conducted at police stations across Bihar, Uttar Pradesh, and Haryana, we find that female complainants invoked most cases of Section 377 in the context of Section 498A (wherein the husband or his relative subjects a wife to cruelty, often within the framework of harassing her for additional dowry post-marriage). Nirvikar Jassal’s analysis found that for every hundred Section 377 cases, more than half are filed by women in the context of Section 498A. Incidentally, Section 498A was diluted by the Supreme Court last year, making it more difficult for women to utilise the one law that had some teeth in deterring husbands from causing harm to their wives. In the Indian criminal justice system, Section 498A has a connotation as a “minor” gendered crime. This is partly why the Supreme Court suggested that first information reports should not be registered immediately after such a case comes before a police officer. The court mandated that no arrests or coercive action based on the law should be carried out until “family welfare committees” had looked into a case under Section 498A, and reconciliation centres had made an effort to resolve the couple’s differences. In other words, woman and spouse would be “counselled” before the case was handled by the justice system. More importantly, they really should not have to. If physically abused by their husbands, wives should be able to register a case without having to use the circuitous paths of employing laws with anachronistic language when they are essentially being raped. A far more effective and progressive strategy would be for the state to now criminalise marital rape. This could be done by passing a new law or merely removing the exemption in Section 375. In its judgment on Section 377, the Supreme Court stated, “The constitutional courts have to recognize that the constitutional rights would become a dead letter without their dynamic, vibrant and pragmatic interpretation. Therefore, it is necessary for the constitutional courts to inculcate in their judicial interpretation and decision making a sense of engagement and a sense of constitutional morality.” We fully agree with this sentiment and urge both the political class and the court to give married women full restitution of their rights under the Constitution by making marital rape a heinous crime.
Pradeep Chhibber is a Professor of Political Science at UC Berkeley. Nirvikar Jassal is a doctoral candidate at UC Berkeley and a 2018-19 Jennings Randolph Fellow with the U.S. Institute of Peace
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