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The Indian Penal Code, formerly known as the Draft Penal Code, (and currently every learned advocate's bible,) which is a fairly comprehensive, substantive code listing out wrongs which amount to offences in India, was drafted under the first law commission appointed and headed by Lord Thomas Macaulay as per the Charter Act of 1833.

'Our principle is simply that- uniformity when you can have it, diversity when you must have it, but in all cases, certainty.'- Lord Macaulay on the setting up of the commission

In other words, whilst his first attempt at codifying Indian law, he undertook a utilitarian stab at combining universal principles of progress towards 'the rational'; (considering the dire need for doing away with other laws/practices like Sati,) along with the cultural and ethical sentiments popularly held by the Indian population in the 19th century, as he sought to draft the IPC.

'We are legislating for a country where many men, and those by no means the worst men, prefer death to the loss of caste; where many women, and those by no means the worst women, would consider themselves as dishonored by exposure to the gaze of strangers.' – Lord Macaulay 

His effort at the time, of course, could not be termed less than commendable. However, the IPC was enacted in 1860, and while there have been a number of amendments ever since, advanced in the pursuance of polishing laws as per the maturing conventions of time, there are yet laws that remain untouched; laws stringent upon moral notions possessed by people more than a century ago, it's no surprise they would appear to be a bit absurd now.

Here is a list of such laws which could do away with a few antiquate/downright irrational aspects (or perhaps just stop existing for the love of pure, nice, and happy things.)

i) Adultery

Generally speaking, when a married person has sexual intercourse with another person who is not their spouse, such married person is said to be 'committing' adultery. It's essentially an act of infidelity found to be objectionable on moral, social, and legal grounds till date in some countries; the concept having found its roots in religious texts of Christianity, Islam, and Judaism.  

While the common law was in its initial stages of evolution, commission of adultery had mostly been construed along the lines of 'breach of moral, societal standards,' and 'violation of matrimonial sanctity', however, now the focus has shifted more towards compensating the aggrieved spouse by way of damages and a free ticket to divorce.

Section 13; The Hindu Marriage Act, 1955

(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party: (i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse;

The United Kingdom, too, among many other nations, has declared adultery as a valid ground for obtaining divorce. There are also some countries, however, that have adultery criminalized.

Section 497; The Indian Penal Code, 1860

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.

While there's still the strong belief that Indian Law has embedded and retained plenty seeds of the English common law system, it would be prudent to note that the U.K. had decriminalized adultery way back in 1857. Not only has our nation been weighed down by the rusty chains of this obsolete system of belief for more than a century, but the IPC interpretation of it has consequences which are directly in violation of Articles 14 and 15 of the Indian constitution.

The unfortunate implications of the section would be:

Only men are capable of committing the offence of adultery.

Even though an act of adultery would technically be initiated upon the mutual consent of the married woman and the guilty party, the law goes so far as to clarify that it should be without the husband's consent or connivance. This means the husband's consent takes pre-eminence over the consent of his wife as if she is akin to a minor (or perhaps a goat ;) incapable of forming a rational decision by her pure resolve. And so it would only be wise to have her exempt from any criminal liability, the law commissioners in the second draft thought. The Supreme Court, rejecting that it is a violation of articles 14 and 15, stated the following rationale- 'It is commonly accepted that it is the man who is seducer and not the woman.'  

A married man can be sexually involved with unmarried women without incurring criminal liability.

This only works at reinstating the point about the man's consent overriding that of his wife. The Supreme Court while observing all these contentions didn't deviate from its view. 'Even if a time may come when women start seducing men,' the Supreme Court, upholding section 497's constitutional validity held, 'it would be for the Legislature to consider whether section 497 should be amended appropriately so as to take note of the 'transformation' which the society has undergone.' (Well, that sure could still prove to be a long, long time.)

The Law Commission of India in its 156th report in 1997, under the Chairmanship of Mr. Justice K.J. Reddy, recommended the following phraseology of Section 497:

'Whoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to be the wife or husband, as the case may be, of another person, without the consent or connivance of that other person, such sexual intercourse not amounting to the offence of rape, commits 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.'

MY TAKE: Adultery should be decriminalized altogether. A marriage, like a contract which it is, (and even if the most sacred and holy one,) on being violated need not incur criminal liability, for the factor of 'criminal intent' cannot easily be unravelled. The mental distress, if any, caused to the aggrieved spouse on the other hand would attract damages from the defaulting spouse, thus not holding more weight than a civil dispute. Adultery therefore should merely be a ground for divorce.

[In picture above: Tristan and Isolde; an epic drama based on a love affair]

ii) Rape and Sodomy

These could take longer to amend, having recently faced changes. The section of rape in IPC, having been amended post the Nirbhaya rape case, though a definite improvement with the clauses made more comprehensive to include acts other than forcible peno-vaginal penetration, still has immense scope for being stirred to fall further in line with the society's needs. It may do so by incorporating elements with reference to other equally heinous acts that would fall within the definition of rape; acts yet inconceivable by some, and not dealt with by others for the fear of huge stigma around them.

The problem would seem more apparent upon primarily laying down what is stated of the offence:

Section 375: The Indian Penal Code, 1860

Rape-A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions.

The very description begins with 'a man is said to commit rape', thus narrowing the scope of the offence by excluding the notion that women can rape. The description continues, 'has sexual intercourse with a woman,' which further omits another sound, equally abhorrent possibility of men being raped by other men.

'Man convicted for sodomy' is what one is likely to hear on the routine news if there is an incident akin to the aforementioned possibility. The courts, for such situations, rely on section 377 instead. Allow me to digress.

Section 377: The Indian Penal Code, 1860

Unnatural offences-Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

This section was struck down in a 2010 Delhi High Court ruling upon a petition filed by the NAZ Foundation in the interests of the LGBT Community, insofar as it criminalised consensual adults from having homosexual intercourse. However, the Supreme Court in 2013 overruled this judgement, stating that the Delhi HC bench failed to see that only a miniscule fraction of the country's population constitutes gays and lesbians, and that 'in the more than 150 years past, less than 200 persons have been prosecuted for committing offence under Section 377, and this cannot be made a sound basis for declaring that section ultra vires Articles 14, 15, and 21.'

Interestingly enough, the following year the Supreme Court made a show of bestowing formal recognition to the transgender community as the third gender.

The SC's attempt at killing two birds with a single stone by reinstating 377 hasn't gone amiss. Measures for legality of gay marriage seem viable for some far-flung future. The ban on intercourse between two consenting adults amidst their own privacy is the primary issue that is being struggled with here. (Welcome back to the middle ages! Note, there will be no sex on Sundays.)

Moreover, the SC has completely missed the point by classifying men's ordeal under a section which is essentially a ban on sodomy, (and which altogether lacks the ingredient of 'consent,) and not terming it as rape-forceful intercourse with someone; i.e. without that person's consent.    

Another significant feature to note would be the exception added by the 2013 amendment preceded by the six descriptions of the circumstances of rape:

Section 375; The Indian Penal Code, 1860

Rape (Exception) - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

This essentially decriminalizes marital rape, an ever-rising problem in the country. As per the statistics published by UN Women in 2011, in India, the number of women sexually assaulted by their husbands is 40 times the number of women assaulted by men they do not know.

MY TAKE: The section on rape should be widened to entertain the possibility of man-rape, a continuing problem as a large portion of male victims is left out in the fear of inane stigma around it, furthermore burdened with no access to legal recourse. Though perhaps, the scope of extension, at the present stage, could do without advancing to the notion that 'women rape men,' considering that majority laws are still not exactly panned out in line with gender neutrality.

Moreover, section 377 and the 'exception' clause in section 375 should be entirely done away with.

Author's Note: In part II of the article, which I shall publish next week, I will be covering three such more offences in the Indian Penal Code that should be amended/repealed in my view.

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Category Criminal Law, Other Articles by - Raveena Kataria