Guest Post: Criminal state of Mind and Strict Liability in Rape

(This is a guest post by Adi Narayanan Mamandur Kidambi)

The Criminal Law Amendments in 2013 led to a conundrum surrounding the nature of the offence of Rape as defined under Section 375, of the Indian Penal Code, 1860 (IPC). The confusion was whether the provision constitutes a ‘strict liability’ offence or one that carries an element of ‘mens rea’, i.e., proof of a guilty mind. Presently, Section 375 IPC proscribes penetrative sexual activity beyond the traditional ‘peno-vaginal’, in the absence of the will or consent of the woman, and under specific circumstances in the presence of consent, when it is vitiated. The provision has been interpreted by different High Courts as both a strict liability provision and indirectly as an offence requiring the presence of some (arbitrary) form of mens rea.

Through this post I argue first that the amended provision is silent with respect to a mens rea requirement but does not necessarily imply the exclusion of the same. Consequently, I argue second that in the absence of legislative intent to amend the provision, the courts should read into this silence a suitable ‘mens rea’ requirement.

Echoes of Silence

In Indian criminal legislation, specifically Macaulay’s IPC, provisions are usually structured in any of the following phraseologies:

• First, provisions have an express inclusion of mens rea through insertion of words such as “intentionally”, “knowingly”, “voluntarily”, “reason to believe”, etc.
• Second, there may be an express exclusion of mens rea through the phrase “Whoever voluntarily or otherwise…” this is also called the strict liability conception. 
• Lastly, and most importantly, a third construction of provisions which are silent with respect to mens rea, such as Section 361, Section 375 & Section 292 of IPC, ‘possession’ in TADA, etc. as they are not worded in either of the above manners.

With regards to interpreting the construction of provisions that do not explicitly or impliedly include the element of mens rea (read: are silent), the Supreme Court in Nathulal v. State of Madhya Pradesh held that there is a general presumption of the presence of a mens rea requirement in a penal statute unless the provision itself expressly excludes or necessary implies its absence. Further, such ‘no-fault' provisions must be subject to strict and literal interpretation, and judges do not have liberty to qualify such statutes to restrict their ambit, as it would defeat the purpose of the statute.

In the context of Section 375, there is neither an express exclusion of mens rea nor is there any necessary implication of the same. However, owing to drafter’s intent, the silence in the provision has increased the propensity for inconsistent interpretation of Section 375 as both a strict liability provision and a provision with mens rea. 

On Strict(er) Tides

Going by the patterns of construction followed in Indian criminal law (referred to in the previous section) it becomes difficult to comprehend why a construction excluding mens rea explicitly, was not chosen. In my opinion, clarity in this matter would have helped declare the legislative intolerance of rape, forcing individuals who engage in sexual intercourse, to not only follow the ‘upgraded’ consent provision but to additionally obtain awareness from their partner as to what passes for responsible sexual behaviour within their relationships.

Currently, the silence allows courts to completely negate the perspective of the accused, as was done at the level of the Trial Court in Farooqui’s case. The Trial Court held that the uncorroborated statement of the prosecutrix was sufficient to prove that the proscribed act occurred, and that her statement by itself was sufficient for holding the accused guilty. But it made no enquiry as to the state of mind of the accused, at all, effectively reading the provision as being devoid of a mens rea requirement. My concern with this interpretation is that it sounds like a ‘presumption of guilt’ being imputed onto even that accused who may have acted in ‘good faith’ and had reason to believe the act to be consensual, without so much as an opportunity being afforded to them to prove their non-culpability prior to being incarcerated. 

This further implies that the state of mind of men, in interactions that determine the agreement to consent, is completely irrelevant. In that case, the question that comes to mind is, that in developing clear metrics for what passes for affirmative consent between two intimate partners, one must also be aware of what men may comprehend to be an affirmative consent on part of a partner who they share a sexual history with, so as to negate all those inferences that men make, that are not actually an affirmative consent on part of their female partner. This extreme stance makes it unlikely that an exercise of determining affirmative consent standards within intimate relationships may take place within reason.

On the other hand, scholars have defended the present construction and argued that the silence does not leave anything to imagination. Professor Mrinal Satish, one of the scholars who worked with the Justice Verma Committee which made the recommendations that resulted in the 2013 amendments, has argued that the offence does not include a defense of “mistaken belief” or “assumed consent”, and the courts must only investigate the presence, or lack thereof, of consent, without regard to the accused’s perception or claim as to mistake of consent. The effect of Professor Satish’s argument is to interpret Section 375 with strict liability, for it calls for exclusion of mens rea in general, as opposed to excluding an investigation of the accused’s state of mind in only some specific circumstances.

While I agree with Professor Satish to the extent that no arbitrary mens rea argument can be applied under the provision, I disagree that the crime of rape must be interpreted as a ‘no mens rea’/strict liability offence, and back the presumption of mens rea for two reasons: First, mens rea and consent in rape are intertwined, and as the text of the statute stands, it does not seem absurd to foresee an accused claiming lack of some arbitrary mens rea by raising a contention that he was under a presumption of, or had reasonable belief of, or honestly mistook the presence of, consent from his intimate partner (especially in case of a shared sexual history) and that he did not have either the knowledge or intent or foresight or desire, etc. to proceed with sexual intercourse in the absence of affirmative consent. Lastly, the possibility that a strict liability interpretation allows for the incarceration of even that one accused who acted in good faith with the ‘reasonable’ belief that his partner had affirmatively consented.

To qualify my claim, while I support a need to presume a mens rea requirement, I do not seek presumption of any arbitrary mens rea, which the courts currently have the discretion to choose (as the Delhi High Court had chosen in the Farooqui appeal, discussed below). The above claims render this silence hugely problematic due to the extreme and contradictory interpretations it enables the courts to make. 

All in the Mind 

Another devastating interpretation of Section 375 IPC, that gave us a glimpse into a regime of rape adjudication with some arbitrary mens rea requirement, is in the High Court judgment in Mahmood Farooqui v. State (Govt Of NCT Of Delhi), one of the first instances where a High Court engaged with the amended provision. The court in the pursuit of including the state of mind of the accused to ‘fairly’ assess the circumstances of the case, completely disregarded the claims by the prosecutrix in her testimony, as to a clear denial of consent given explicitly to the accused, on account of her faking an orgasm out of fear to make the ordeal end. The court remarked that, “Instances of woman behavior are not unknown that a feeble no may mean a yes. If the parties are strangers, the same theory may not be applied ... mere reluctance would also amount to negation of any consent. But same would not be the situation when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts. In such cases, it would be really difficult to decipher whether little or no resistance and a feeble no, was actually a denial of consent.” In the space of a few words, years of progress made in creating a feminist shift of consent to equalise the woman as a participant to the sexual conduct as was sought by the 2013 Criminal Law amendment Act, was undone. 

Although this case occurred in the absence of a specific mens rea requirement, the creation of the defence of ‘assumed consent’ and with reiteration of the perverse ‘no means yes’, the adjudication of rape became indifferent towards the prosecutrix, converting the proceedings into a kaleidoscope of events from the perspective of the man dominantly. 

The Reasonable Mens Rea Requirement

In line with my analysis (and with immense qualitative superiority), Professor Barry Wright, a noted scholar who has written on Macaulay’s IPC, argues that the provision is silent on the requirement of mens rea, however, he argues that Macaulay constructed consent provisions in the IPC in the pursuit of individualistic liberalism which placed individual autonomy above competing interests, implying that the imputation of culpability would require proceedings to assess the accused’s state of mind as part of his defence. The question then becomes which out of the multiple standards of mens rea such as knowledge, intent, recklessness, malice, reasonable belief, honest mistake, etc. Would be appropriate for Section 375. Let us consider two thresholds:

First, Kumaralingam Amirthalingan, takes a nuanced approach that accepts strict liability interpretation, but accommodates for mens rea, using Section 79 of the IPC, which defines ‘mistake of fact’, which they feel can be applied to strict liability offences. Under this section an accused who, after exercising due diligence in doing anything proscribed under law in carrying out the action that constituted the strict liability offence, may be deemed morally innocent, and to have been acting in good faith. 

Second, Professor Latika Vashisht argues in her essay that Section 90 of the IPC provides for a reading of mens rea and consent that would imply that the liability will arise only “when an accused is aware that the victim is not really consenting as her decision is guided by fear or fraud”. 

It is fair to say that both these interpretations of possible mens rea defenses are useful given that these will force the court to assess whether due diligence was undertaken by the accused, by not solely relying on the man’s subjectivity, but assessing whether he sought to get affirmative consent, preventing a scenario like Farooqui.

I prefer Professor Vashisht’s conception given that it engages head on with Farooqui and nullifies its ratio (and any arbitrary mens rea it stands for) while also mitigating the likelihood of even that one accused, who lacks the requisite guilt, from being punished because her reading does not allow one to construe the provision as a strict liability provision and inserts into it the requirement of conducting due diligence prior to commencing intercourse. Lastly, her reading of Section 90 with Section 375, seeks to retain the importance of the prosecutrix’s perspective as any analysis of consent being guided by fear or fraud is bound to take her (prosecutrix’s) perspective into account. 

Escaping the Silence 

While the justification for strict liability in rape is that it will deter morally culpable conduct, it poses the inherent harm of punishing those who may not have the same moral culpability. Deterrence is not a sufficient metric to determine the inherent value of a provision, considering the mere existence of a ‘deterrent’ does not deter, unless it allows people to assess through their own moral calculus as to whether something is good or objectively bad under any and all circumstances. 

Considering the same, a mens rea requirement that places the burden of proving due care on part of the accused, would require intimate partners to actively engage with each other’s state of mind, forcing them to be outspoken during the process of reaching consent to indulge in sexual activity rather than settling for a Bollywood like “no means yes”, which will ultimately help them determine an affirmative standard of consent that operates dynamically throughout intercourse. Adopting such a standard of consent may prevent the prosecution of those that lacked the requisite criminal state of mind. 

If the provision is construed to contain a strict liability by the courts, it invites the risk of the classic ‘what about false rape cases’ narrative, and indicates tacit acceptance of the narrative of women being powerless, which can lead to the insurgence of the stereotype that women are incapable of being equivalent, rational, and objective participants to intercourse who can reason and present their values and beliefs. Implying that while feminist reforms are important in the law, these can neither exist nor be appreciated, but in a bubble. 

On the other hand, misplaced tolerance for ‘assumed consent’ post Farooqui, will likely hinder individual desire for introspection and efforts to educate the self and to be responsible participants in sexual activity and treat each other on an equal footing. This kind of a mens rea requirement would create the avenue for the subjective interpretation of circumstances by the accused to become the most relevant part of the proceedings, and what is possibly worse, is the likelihood that the courts may regress towards adopting the horrid standards of the ‘ideal victims’ that resist to protect their chastity and virginity, as was laid down in past judgements such as in the case of Bharwada Bhoginbhai Hirjibhai v. State Of Gujarat. 

Therefore, a mens rea requirement ought to be read into the definition of rape, and preferably one which requires men to have taken due care and diligence in obtaining consent for the reasons highlighted in the previous section. 

Escaping the silence in Section 375 this way not only helps us mitigate the curbing of liberty of those who do not have a guilty mind, but it also allows us to give specific direction to that provision which yields a desirable and socially optimal outcome, as "the law can (either) bind us to the past or help push us into the future. It can continue to enforce traditional views of male aggressiveness and female passivity, (and) continue to uphold the 'no means yes' philosophy as reasonable...." or pave the way for holistic (and) feminist interpretations of the law.

Guest Post: Rethinking the Conviction Model for Non-Homicidal Repeat Sexual Offences

[I am happy to present this guest post by Ms. Ashna D., a third year law student in the undergraduate program at NUALS, Kochi.]

When the Supreme Court in Mithu Singh v. State of Punjab [1983 SCR (2) 690] struck down as unconstitutional the mandatory death sentence for murders committed by life convicts, the Court made its position very clear – “The legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death.” 

This view was echoed by the Justice Verma Committee Report when it specifically opted against prescribing a maximum sentence of death for repeat offences of rape. Despite this, Parliament in the Criminal Law (Amendment) Bill, 2013 chose to mete out harsher punishments in certain cases and argued that if a person repeatedly commits the sexual offence of rape, the punishment has to be death.

Recently, India has been witnessing a disturbing glorification of the death penalty as a proportionate punishment for heinous sexual offences. This dangerous rhetoric seems to have wriggled its way into the sentencing process with the Supreme Court allowing the “collective conscience” to influence the quantum of punishment. This post highlights a need to reassess the constitutionality of Section 376E of the Indian Penal Code [IPC] which adopts a ‘conviction model’ that is vague, disproportionate and arbitrary. It argues that such a provision unthinkingly forecloses the possibility of reform and rehabilitation of convicts and victims respectively, by placing two glaringly different classes of offences on the same footing. For, as Lord Macaulay noted in his ‘Notes on Punishment’ on the Penal Code, “To the great majority of mankind, nothing is so dear, as life”.

A Misguided Interpretation of Enhanced Punishment

The outrage that followed the 2012 Delhi gang-rape led to the passing of a slew of amendments pertaining to the offence of rape. Apart from broadening the definition of rape to include oral and digital penetration, another amendment provided that persons who had already been convicted of rape under Sections 376, 376A or 376D of the IPC shall suffer an enhanced punishment under Section 376E IPC, which would either be imprisonment for the rest of his life or the death penalty as well. A literal reading of the Section only requires a previous conviction in order to impose the death penalty, and deviates from the ‘chronology of offences’ model followed under Section 75 IPC.

The rationale behind Section 75 is founded on the principle that criminal law affords limited patience to repeat offenders who have failed to “learn their lessons from the initial punishment”, and is borrowed from American criminal jurisprudence. It can be argued that it is wrong to keep imposing increasingly severe penalties for each new offence. This is because such provisions give too much weight to persistence and violate the principle of proportionality, creating a systemised gradation of punishments that fail to understand the enormously differing motives and circumstances underlying each individual crime.

Nonetheless, a criminal justice system that allows for recidivist provisions must at least ensure their fair implementation. This is precisely what was argued for by the petitioners in the case of Mohd. Salim Mohd. Kudus Ansari [Writ Petition No. 1181 of 2014, Decided on 03.06.2019 (Bombay High Court)], where the accused was sentenced to death upon ‘subsequent conviction’ despite the trials for the first and second alleged offences of rape being conducted almost simultaneously. By adopting the ‘conviction model’, the Bombay High Court not only turned a blind eye to the marginal time difference between the two convictions, but it also arbitrarily deprived the accused of his single opportunity to seek reform. This confusion surrounding the term ‘subsequent conviction’ makes its application inherently vague and may trap the innocent by not providing for an adequate warning.

Faulty Foundations

It is only reasonable to assume that crime is deterred not by increasing the gravity of punishment, but by ensuring its certainty. Nonetheless, a criminal justice system must consciously adhere to the principle of proportionality. That is to say that it does not allow punishment of the innocent; for, any punishment in excess of what is deserved for the criminal conduct is punishment without guilt. The logic followed by Section 376E IPC is principally unsound on two grounds. Firstly, barring Section 376A IPC which itself requires the causing of death, imposing a sentence of death for non-homicidal offences is antithetical to Articles 14 and 21 of the Constitution and therefore in gross violation of the principle of proportionality.

As was observed by the Supreme Court of the United States in Coker v. Georgia, rapes are no doubt barbaric crimes that deserve serious punishment. However, the Court opined that the death penalty is a needless and purposeless imposition of pain and suffering on a rapist who, as such and as opposed to the murderer, does not unjustifiably take human life. While the depravity and sheer inhumane nature of countless crimes may push us to make demands for the capital punishment its severity and irrevocability must be kept in mind. To equate the two would therefore be manifestly unjust.

Secondly, the objective of Section 376E IPC, to provide for enhanced punishment of repeat offenders, can only be achieved if the punishment awarded under this section exceeds the punishment awarded for the first conviction of rape under Section 376 (only rape), 376A (causing death or resulting in persistent vegetative state of victim) or 376D (gang rape). Ergo, if the first sentence is one of life imprisonment, for the second conviction to be an enhanced punishment it cannot be a second life imprisonment. This is by virtue of Section 427(2) of the Criminal Procedure Code which provides that that a subsequent sentence of life imprisonment imposed will run concurrently with the previous sentence. Thus, the ultimate purpose of Section 376E will be defeated if the enhanced punishment, by necessary implication, is not capital punishment. Such a position not only runs the risk of erroneous executions but is also in direct violation of the dictum laid down in Mithu Singh and the ‘rarest of rare’ doctrine propounded in Bachan Singh v. State of Punjab [(1980) 2 SCC 684].

On Rehabilitation and Reformation

By robbing judicial discretion in the sentencing process and pursuing our thirst for revenge, we are forgetting that a criminal is a victim of his circumstances in a society that has failed him. If the recent rise in sexual crimes is any indication, it is a telling tale of a nation that still perpetuates patriarchal notions and accepts the power and dominance of a man over a woman’s bodily autonomy. Our governments cannot offer society false hope that by killing sexual offenders via a death penalty we can eradicate sexual violence. By conveniently enlarging the scope of penal provisions to provide harsher punishments for repeat offenders, the State is shirking its responsibility of creating a strong framework to rehabilitate survivors of sexual offences within which various stakeholders must continuously assist them in rebuilding their lives.

Concomitantly, the State also owes to convicts a rightful chance to reform. This duty entails reforming the manner in which the practice of life imprisonment is implemented. Issues such as overcrowded and understaffed prisons, physical and mental torture of inmates, and inadequate recreational facilities have long lasting impacts on the lives of prisoners in ways that hinder reform and render their reintegration into society extremely problematic. Add to this the innumerable years convicts spend languishing in these very prisons with the prospect of death hanging over the heads. In a broken criminal justice system such as ours within which the very administration of the capital punishment is so intrinsically fallible, to extend its application to non-homicidal offences is to commit the gravest form of injustice disguised as the law. 

Guest Post: Understanding Section 377 in the Afterglow of Navtej Singh Johar v. Union of India

(I am happy to host a Guest Post by Vanshaj Jain. A slightly modified version of this post first appeared on the Indian Constitutional Law and Philosophy Blog)

That consensual sex between adults lies beyond  Section 377 of the Indian Penal Code 1860 [IPC] is now certain, per Navtej Singh Johar. What remains within the confines of that provision, however, is perilously unclear. To understand the conceptual imprecision that lies at the heart of this decision, it is necessary to understand how the normative content of Section 377 has changed since its ignominious birth. 

Sections 375 and 377 of the IPC were originally intended to cover two mutually exclusive categories of sexual acts. While Section 375 covered “sexual intercourse”, Section 377 infamously covered “carnal intercourse against the order of nature”. Though these terms were left intentionally imprecise, over time their meaning became conceptually dependant on each other. In Khanu v. Emperor, sexual intercourse was considered intercourse ‘in the order of nature’ with “the possibility of conception of human beings” and carnal intercourse against the order of nature was understood to cover all non-procreative sexual acts. Similarly, in Lohana Vasantlal Devchand, the content of Section 377 was defined in opposition to Section 375 by describing carnal intercourse against the order of nature as “an imitative act of sexual intercourse”. This bifurcation of sexual acts was cemented by the Supreme Court in Sakshi v. Union of India, where ‘sexual intercourse’ was restricted to penile-vaginal penetration, while all residual forms of intercourse (including “penile-oral penetration, penile-anal penetration, finger-vagina, finger-anal penetration and object-vaginal penetration”) were considered carnal intercourse against the order of nature. Thus defined, the relationship between the two provisions could be conceived as follows: 

However, the 2013 Criminal Law (Amendment) Act put an end to the watertight separation between these provisions. Section 375 was altered to include acts that earlier fell only within the domain of Section 377, including oral sex, anal sex and penetration by objects. Coupled with these changes, the provision ceased to describe the actus reus of rape as ‘sexual intercourse’. In fact, the marital rape exception to Section 375 which earlier covered only ‘sexual intercourse’ was specifically amended to except “sexual intercourse or sexual acts”. As Sekhri and Mukhopadhyay argue, this ended the binary separation of Sections 375 and 377, under ‘sexual intercourse’ and ‘carnal intercourse against the order of nature’. Indeed, it would be strange if the Amendment Act continued to restrict Section 375 to ‘sexual intercourse’ alone since it was based on the Justice Verma Committee Report, which expressly recommended removing Section 377 and abolishing the underlying division. Consequently, following the 2013 Amendment, the relationship between the provisions could be conceived of as follows: 

The Confusions Over Legislative Intent

It is this change in the conceptual interdependence of Sections 375 and 377 IPC that the Court seems to gloss over in Navtej Singh Johar. The judgment and opinions erroneously presume that Section 375 is still restricted only to ‘sexual intercourse’ and thus has no potential overlap with the actus reus of Section 377. Per Chandrachud J., for instance, the 2013 Amendment shifts non-traditional male-on-female sexual acts [now covered in amended Section 375(a)-(d)] from the category of ‘carnal intercourse against the order of nature’ to that of ‘sexual intercourse’. He reasons that: 

“…if ‘sexual intercourse’ now includes many acts which were covered under Section 377, those acts are clearly not ‘against the order of nature’ anymore. They are, in fact, part of the changed meaning of sexual intercourse itself. This means that much of Section 377 has not only been rendered redundant but that the very word ‘unnatural’ cannot have the meaning that was attributed to it before the 2013 amendment…[m]any of these acts which would have been within the purview of Section 377, stand excluded from criminal liability when they take place in the course of consensual heterosexual contact. Parliament has ruled against them being regarded against the ‘order of nature’, in the context of Section 375. Yet those acts continue to be subject to criminal liability, if two adult men or women were to engage in consensual sexual contact.” 

This misconception is repeated in the opinions of the other judges, compelling them to believe that the 2013 Amendment implied that consensual non-traditional male-on-female sex is legal because it displaces such acts from Sections 377 to 375, the latter having a consent requirement. As is argued above, the language of amended Section 375 betrays that this cannot be its effect; instead such acts remain within the meaning of ‘carnal intercourse against the order of nature’ but are to be covered by both Sections 377 and 375 (under the phrase “sexual acts” added by the amendment). 

Further, to add to the confusion, the judges seem to ascribe the intention of decriminalising all consensual sex between a man and a woman to the 2013 Amendment. Per Nariman J., for instance: 

“the legislature has amended one portion of the law in 2013, making it clear that consensual sex, as described in the amended provision, between two consenting adults, one a man and one a woman, would not be liable for prosecution” 

The basis for this conclusion is never made clear in the opinions in Navtej Singh Johar, and cannot be located within the text of the 2013 Amendment Act or the Justice Verma Committee Report. Indeed, it is absurd to reason that merely because the actus reus of one provision (here: Section 375) is expanded but made contingent on a consent requirement, the implication it carries is that the same act cannot be penalised under any other provision (here: Section 377), even if it falls within its definitional parameters. This seems patently incorrect. 

What Remains of 'Carnal Intercourse against the Order of Nature'? 

The second concern with the manner in which the decision addresses Section 377 relates to the phrase ‘carnal intercourse against the order of nature’. The judgment and concurring opinions indicate that this phrase lacks clear content: 

“In the contemporary world where even marriage is now not equated to procreation of children, the question that would arise is whether homosexuality and carnal intercourse between consenting adults of opposite sex can be tagged as ‘against the order of nature‘. It is the freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature.” [CJI] 

“At the very outset, we must understand the problem with the usage of the term ‘order of nature’. What is ‘natural’ and what is ‘unnatural’? And who decides the categorization into these two ostensibly distinct and water-tight compartments? The simple question which we need to ask ourselves is whether liberty and equality can be made to depend on such vagueness of expression and indeterminacy of content…[i]f it is difficult to locate any intelligible differentia between indeterminate terms such as ‘natural’ and ‘unnatural’, then it is even more problematic to say that a classification between individuals who supposedly engage in ‘natural’ intercourse and those who engage in ‘carnal intercourse against the order of nature’ can be legally valid” [Chandrachud J.] 

“…the phrase “carnal intercourse against the order of nature” in Section 377 as a determining principle in a penal provision, is too open-ended” [Malhotra J.] 

While the reasoning is unimpeachable, the judges don’t seem to fully appreciate its consequence. The phrase ‘carnal intercourse against the order of nature’ forms the crux of Section 377; it is the actus reus on which the crime is based. If its content is unclear, as the judges rightly point out, only two consequences can follow: either the Court provides a clear guiding principle to determine the content of this phrase for future use or it strikes down the entire provision for vagueness. Troublingly, the Court does neither. Instead, the Court reformulates the content of Section 377 as follows: 

“However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under 
Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC.” [CJI] 

The phrase “act of the description covered under Section 377” could, reasonably, only refer to ‘carnal intercourse against the order of nature’. Yet, by virtue of the pronouncements highlighted above, this phrase no longer carries any positive content, since the Court has, in no uncertain terms, departed from the tests laid down in Khanu and Lohana Devchand, without providing a new test of their own. This renders the residual content of Section 377 uncertain. It could, potentially, be conceived of in three possible ways: 

Option A is the only one consistent with the Court’s statements on the unintelligibility of ‘carnal intercourse against the order of nature’. By undermining this phrase, it is conceivable that the Court wishes to put the divide between ‘sexual intercourse’ and ‘carnal intercourse against the order of nature’ to rest once and for all. Consequently, Section 377 could be used to cover all non-consensual acts of sex (in addition to bestiality and paedophilia) that are not already covered by Section 375. This could raise the interesting possibility that marital rape and female-on-male rape are now subject to penal liability.

Option B indicates that Sections 375 and 377 are not watertight categories; the former criminalises non-consensual male-on-female sexual intercourse and carnal intercourse (“sexual acts”), the latter covers all remaining forms of non-consensual carnal intercourse. While this option best reflects the text of the 2013 Criminal Law (Amendment) Act, it isn’t consistent with the court’s reasoning on the 375-377 relationship. Option C allows for the two provisions to retain their independent character, the former applying only to ‘sexual intercourse’ while the latter covers only ‘carnal intercourse’, and best reflects the court’s description of their interaction. However, given the Court’s twin reasoning, first, on the unintelligibility of ‘carnal intercourse against the order of nature’ and its clear dicta that non-traditional forms of sex are not ‘unnatural’, and second, that the 2013 Amendment Act shifted non-traditional forms of sex from ‘carnal intercourse’ to ‘sexual intercourse’, it is possible that under both, Options B and C, Section 377 could no longer be used to cover non-traditional intercourse when done non-consensually, rendering the provision redundant (outside the context of bestiality and paedophilia). This would also have the bizarre outcome that even though male-on-male rape was criminalised earlier under Section 377, it won't be anymore (due to the gendered nature of Section 375’s text). However, if the phrase ‘carnal intercourse’ does have any residual content, this would again raise the possibility, under Option B, of trying marital rape and female-on-male rape (when it entails such carnal intercourse) under Section 377. 

In conclusion, the normative content of Section 377 still remains uncertain, as it was before Navtej Singh Johar. In all likelihood, it will require further clarification. What is clear, however, is the irresponsible manner in which this judgement addresses the conceptual boundaries of a criminal law provision whose content it was called upon to decide.

Mahmood Farooqui's Appeal and a Problem of Labels

On 25 September 2017, a single judge of the Delhi High Court allowed an appeal filed by Mahmood Farooqui challenging his conviction under Section 376 for rape, where he was sentenced to undergo seven years rigorous imprisonment and pay a fine of Rs. 50,000/-. It comes in the wake of the Punjab and Haryana High Court suspending the sentence of three students convicted of gang-rape in another case that attracted significant media attention. The decision has garnered mostly negative criticism from what I gather (see here, and here), and I am certain more scrutiny of the opinion will come during the week. At the outset, while the fast pace of the proceedings must be applauded (the appeal has been decided around two years after filing of the complaint itself), it only reminds us of the other side of that coin which is, unfortunately, the only one that 'have-nots' unfortunate enough to be stuck in the Indian criminal justice shall ever see. How many regular hearings from past years suffered so that Mr. Farooqui's case could be heard, we shall never know.   

To have my two cents worth as a lawyer, I think the decision is questionable and there is a good case in appeal. I certainly do hope that an appeal will be filed soon by either the the State / Victim before the Supreme Court. The High Court decision does not, with certainty, tell us why the conviction is overturned beyond telling us that the prosecution case was not proved beyond reasonable doubt. What I mean is, that the Court does not fully commit to either saying that it (i) the entire allegation of sexual acts was not proven, or (ii) only the non-consensual nature of the sexual acts was not proven. Given the amount of time spent by the decision in explaining the idea of consent, one may think it is the latter. The Court has said in paragraph 102: "But, it remains in doubt as to whether such an incident, as has been narrated by the prosecutrix [victim], took place and if at all it had taken place, it was without the consent / will of the prosecutrix and if it was without the consent of the prosecutrix, whether the appellant could discern / understand the same." 

Because of this (and because I know that a lot will be said about this aspect by more competent commentators) I refrain from discussing in detail the lengthy discussion on consent that the High Court engages in. Suffice to say that everyone thought we had moved past a time when courts would tell us that "instances of woman behaviour are not unknown that a feeble 'no' may mean a 'yes'" [see paragraph 78]. Such inferences are precisely what the 2013 amendments to the Indian Penal Code sought to exclude when it added an explanation to state that 'consent' for the Penal Code required an unequivocal agreement. The court, instead, offers us another idea and suggests the consent definition may be flipped to requiring proof that there was not an unequivocal disagreement, in situations depending on various factors such as whether the parties are persons 'of letters' and 'not conservative'. 

All this should convince readers that the decision is very muddled and will make for good arguments in the Supreme Court. That appeal will not raise any discussion on what are, I think, deeper problems that this case highlights: a problem of labels and criminal conduct. Rape, Murder, Robbery, Extortion - all these are labels that have carried on in language to describe certain kinds of acts. Legislatures have the authority to change their meaning but don't do so easily, because they acknowledge the connotations of these labels. For instance, if a corporation dumps toxins polluting rivers which leads to death, calling it murder may not cut it, so you make a different label for that kind of act. The Indian legislature decided to change the meaning rape and expanded the kinds of acts amounting to rape in 2013 to include non-consensual oral sex. It could have done so differently, i.e., by adopting different labels for different kinds of acts (treat penetrative and non-penetrative acts differently, for instance). It could have also shed the label of rape altogether, as has been done in other countries. But it decided to stick to the old label, and in doing so it hoped that the condemnation the law had reserved for particular kinds of acts by labelling them as rape for a hundred years could be extended to other acts. It also hoped that judges who had been trained to not think of certain acts as rape, would change their minds simply because the law said that they had to now. I think Mr. Farooqui's appeal shows us that this experiment is not working, at least not yet with judges where (on an average) they seem to have distinctly different social mores than the parties. It might not have been the best idea to adopt an aggregator term and not adopt a more granular approach for sexual offences. The judgment conveys to me that faced with the binary choice between holding a person guilty of rape or not, the judge could not do it because of how serious the accusation is. Was that illegal? Perhaps. But do judges simply apply the law? Of course not, and pretending otherwise will not help. Judges have biases, and smarter laws should account for them. If we assume as a base position that most judges in India are male and hold gender biases (implicit or explicit), then why create an architecture that only gives them two options and stiffens how the bias operates? A better architecture would factor in that bias, and probably avoid decisions like this one.

(this post was updated on 27 September, 2017. The reference to Section 114-A Evidence Act earlier was erroneous, and has been corrected.)

Guest Post: If it happened during your periods, was it rape?

I am proud to present a guest post by Ms Jinal Dadiya, a Fifth Year student of the B.A. LL.B. (Hons.) program at NLSIU, Bangalore

Given the amount of scrutiny faced by rape cases today, its interesting to consider how menstruation might affect such trials. I found it disconcerting that the judiciary continues to find it problematic to decide whether or not a woman can be raped during her menstrual period. High Courts vary in their consideration of menstruation being relevant, and their treatment of the question at times reflects the ignorant and confused societal conceptions about menstruation today. Here, I've tried to present a rational assessment of the approach adopted by courts in considering such facts relevant for deciding guilt or innocence, and whether the approach makes sense.

Proof of Rape and Menstruation

Before we proceed, it’s important to recollect how the Indian Evidence Act 1872 [IEA] works. The Act explains how evidence can be led to prove/disprove/not prove facts. Suppose we're dealing with a rape trial. The Prosecution must prove the allegation of rape as defined by Section 375 IPC, but how is this proved? The IEA explains a trial turns on proving/disproving the Facts in Issue, as defined under Section 3. For rape, it would primarily consist of proving/disproving whether (a) there was vaginal penetration, (b) against the victim’s consent, and (c) none of the general defences as present under Sections 76-106 IPC were applicable. To satisfy the burden of proving beyond reasonable doubt, the Prosecution would also need to prove the occurrence of other, relevant facts. The IEA through Sections 6-55 explains what is relevant to make evidence pertaining to those other facts admissible. So, we find that facts showing motive, conduct, relationships, cause/effect etc. are specifically made relevant through the IEA, and evidence may be adduced to prove these facts.

In rape trials, medical experts are called upon to prove the fact of vaginal penetration. Here, the Wet Smear/Vaginal Swab Test is an important component of the standard medical examination of rape victims to detect presence of semen or spermatozoa in the vagina. The test is regarded as a crucial piece of evidence in most trials, despite Section 375 not warranting any seminal presence as mere penetration has been made sufficient to commit the offence. In Sadhani Bai v. State of Madhya Pradesh (Criminal Appeal No 1222 of 1996 & Criminal Appeals No. 1326 and 2184 of 1996, delivered on 25.08.2012), B.K. Prakash v. State of Karnataka (MANU/KA/2201/2011) and Mangal Pahariya and Anr. v. State of Jharkhand [2007 (3) JCR 243 Jhr], the accused was acquitted as the smear test yielded negative results and the prosecution had little beyond this to prove its case. 

Appreciating the Relevance of Menstruation

Importantly, the Instruction Manual for Forensic Medical Examination Report of Sexual Assault (Victim) issued by the Indian Council of Medical Research clarifies that a wet smear would test negative when the alleged victim of sexual assault was menstruating during the incident (there are other situations as well which could lead to negative results such as using condoms). This can lead to problems in a system where the smear test is given great importance to decide allegations of rape. In Bablu v. State of Chhattisgarh (2006 CriLJ 3732) the court observed, among other loopholes in the prosecution story, that the fact of the prosecutrix menstruating during the incident falsified her story; an observation neither justified nor of any consequence. Similarly, in Sundari v. State of Chhatisgarh [2006 (4) MPHT 49 CG], a reason for the court to reject the prosecution version was the victim having been menstruating during the incident. Most recently, the Delhi High Court in Meena Sharma v. State (MANU/DE/0944/2014) in 2014 noted that “it would be difficult to believe that a girl who is menstruating would be subjected to a rape”. Here the Court went further and observed that if rape occurred, menstrual blood would have been found on the undergarments of the accused and its absence became another factor for acquittal. 

These observations, unnecessary and demeaning as they may be, are usually accompanied by a consideration of other reasons warranting an acquittal. But even so, how does the fact of menstruation ever come into the picture? If we look at the IEA, it’s clear that this is not a Fact in Issue, so it may at best be a relevant fact. If it’s not relevant, it’s inadmissible, so the question is relevant how? Scanning through sections 6 to 55 of the IEA, it seems one could make it relevant under Section 7 or Section 14, as either facts showing the “state of things” or existence of any “state of body or bodily feeling”. A Court may consider the victim's “state of body” relevant, thereby making her menstruation relevant under Section 14. Similarly, vaginal penetration being a fact in issue, the court may consider the state of the vagina relevant under Section 7. Does this make sense? I have my doubts. Rape under Section 375 makes the state of the victim’s body irrelevant to establishing the offence, rendering facts of this nature inadmissible for the trial. Even if we were to assume that menstruation was a relevant fact and such evidence was to become admissible; mere relevance does not warrant reliance, and certainly not such strong reliance in any case.

Where this fact is obviously relevant is the medical evidence. The doctor examining the victim is an expert called to testify under Section 45 IEA. Menstruation becomes part of facts which "support or are otherwise inconsistent with the opinions of experts" under Section 46. Courts have not been blind to this thought, as can be seen in Dharampal v. NCT of Delhi [Criminal Appeal. No. 567/2008 delivered on 02.02.2010 (Delhi High Court)] and Fanibhushan Behera v. State of Orissa [1995 CriLJ 1561 (Orissa High Court)]. In the former, the appellant-accused argued that absence of seminal presence in vaginal swabs cast a reasonable doubt on the prosecution story. The court reiterated that absence of semen does not rule out rape, highlighting how the fact of the prosecutrix menstruating at the relevant time greatly diminished the relevance of medical evidence. Consequently, the conviction for rape was upheld. In Fanibhushan, Pasayat J. took a similar stance: attributing the absence of semen on vaginal swabs to the fact of the girl’s menstruation during the incident, rather than no penetration. In both cases, menstruation was used to explain the absence of semen on wet smears, and the accused were convicted in the presence of other evidence. 

Conclusions
Statements which indicate the improbability of a woman being raped while menstruating are extremely dangerous. While it is one thing to acquit an accused in cases where vaginal wet-smears are not indicative of the presence of semen and adequate proof is unavailable from other sources, it is an altogether different thing to undermine a prosecution story because of the fact of menstruation during the incident. Not only does it deny justice through trial, but also ruthlessly negates the experiences of the several women who continue to be subject to rapes of the worst kind; while on their period.