This article is written by Daisy Jain, a law student at the Institute of Law, Nirma University. This article analyses the case of Independent Thought v. Union of India.
It has been published by Rachit Garg.
The Supreme Court of India handed down a historic decision on October 11, 2017, upholding every girl’s right to bodily dignity and criminalizing rape during the underage marriage. The Apex Court of the country first outlined the government’s constitutional and fundamental duty to tackle child marriage and uphold the rights of married girls in Independent Thought v. Union of India and Others. India, which has the highest rate of child marriages worldwide and where married girls are three times more prone to being raped than women who are married above the age of 18, is affected by this legislative reform. The article analyses the case of Independent Thought v. Union of India, by discussing the arguments presented by both parties, ratio decidendi, and obiter dicta.
Facts of Independent Thought v. Union of India
- On August 6, 2009, a society-registered and non-governmental organisation, http://www.ithought.in/, filed a petition. The NGO specialises in legal studies, legal assistance, and counselling related to children’s rights and other rights that affect children. Many additional non-governmental groups receive hand-holding aid, technical assistance, and legal support from the NGO. Additionally, it supports various states’ governments.
- Independent Thought filed a writ petition W.P.(C) 382/2013 with the Hon’ble Supreme Court in accordance with Article 32 of the Indian Constitution to highlight the rights violated of married girls between the ages of 15 and 18.
- The petitioner is requesting a writ declaring that Articles 14, 15, and 21 of the Constitution are violated by Exception 2 to Section 375 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’). As stated in Exception 2 of Section 375 of the IPC, it is not rape if a man engages in sexual activity with his wife who is older than 15 but younger than 18 years old with or without her knowledge or consent.
Issue of Independent Thought v. Union of India
- Whether sexual activity between a man and his wife, a girl between the ages of 15 and 18, constitutes rape?
- Whether the IPC’s Section 375’s Exception 2 is unreasonable?
- How discriminatory is Exception 2 to Section 375 of the IPC?
- Does the court create a new offence?
Relevant legal provisions
- According to Section 375 of the IPC, rape occurs when a male engages in sexual activity with a woman against her will or without her agreement and if all seven of the conditions listed in Section 375’s clauses are met. According to Section 375(6), a male has committed rape if, with or without the girl’s agreement or willingness, he made sexual contact with her while she was under the age of 16. This typically refers to “statutory rape,” in which it is immaterial whether the male who committed the rape of a girl under the age of 18 did so with or without her agreement or desire. Previously, it was deemed rape when a penis entered the vagina, urethra, anus, or mouth, of a woman. But today, it is still considered rape whenever a male places any instrument or other bodily part in a woman’s mouth, urethra, vagina, or anus.
- According to Section 375 of the IPC’s Exception 2, a man who had sex with his wife who was over the age of 15 with or without her agreement is not guilty of rape. However, Section 375 of the IPC states that engaging in sexual activity with a girl under the age of 15 is illegal, whether or not she is married and with or without her knowledge or permission. Therefore, the husband will receive an exemption from the charges of rape and will not be convicted of raping her just because she is married, regardless of the female child’s intention or consent, who is over 15 and married.
- The court also took into account the Protection of Human Rights Act of 1993, which provides Section 2(1)(d) that everyone has a constitutionally guaranteed right to liberty, freedom, life, equality, and dignity. Forcing a girl child to engage in sexual activity with her husband is a clear breach of her rights, as it would be against her rights to equality, liberty, and dignity.
- According to the Protection of Women from Domestic Violence Act, 2005, if the husband of a girl child harms the girl child’s wellbeing, impedes the girl child’s life and safety, whether physically or mentally, or sexually abuses the girl child, the husband is guilty of the act of sexual abuse or of any behaviour that lowers the girl child’s dignity.
- In accordance with the Prohibition of Child Marriage Act, 2006 (PCMA Act), a ‘child’ is defined as a male if he is over the age of 21 and a female if she is over the age of 18. A marriage in which one of the contractual parties is a kid is known as child marriage. At the request of the party who is a child and is under the legal age limit for marriage, child marriage may be declared voidable under Section 3 of the PCMA Act.
- Accordingly, under Section 9 of the PCMA Act, if a male marries a girl who is under the age of 18, he will be subject to severe punishment of two years in jail or a fine, whichever comes first. Therefore, it is irrelevant whether a male is a child or not; the issue is whether he marries a girl child, in which case he will be subject to consequences. According to Section 10 of the PCMA Act, someone is guilty of child marriage if they execute, direct, facilitate, or conduct one.
- Section 11 of the PCMA Act prohibits encouraging or allowing the solemnization of child marriage. Any jurisdictional judicial officer or the court may issue an injunction forbidding the solemnization of child marriages, in accordance with Section 13 of the PCMA Act. Last but not least, the PCMA Act’s Section 14 states that any marriage that is created after a court issues an injunction against it will be regarded as void by the court. A reform made in the State of Karnataka now considers any marriage where one of the contracting parties is a minor to be null and void from the beginning.
- The Protection of Children from Sexual Offenses Act of 2012, which the court has also cited, mandates that the child’s best interests should be protected. In accordance with the provisions of the Convention on the Rights of the Child, the Government of India has to protect the best interests of children. According to Section 3 of the POCSO Act, an individual who participates in “penetrative sexual assault” with a female kid also acts in “aggravated penetrative sexual assault” with the girl child who is connected to his wife. The term “aggravated penetrative sexual assault” is defined under Section 5 of the POCSO Act, but it has the same elements as rape under Section 375 of the IPC. It will also result in similar types of harsh punishments; the only distinction is that the girl should not be married under the circumstances of the IPC and the manner of the trial will change. The court ruled that it makes little difference whether a person is found guilty of rape under the IPC or the POCSO because they must ultimately endure similar types of punishment. According to Section 42-A of the POCSO Act, if any other legislation conflicts with the POCSO Act’s provisions, the POCSO Act’s provisions will take precedence since the POCSO Act is a special Act because it only applies to the safeguarding of children’s rights from sexual offences.
- The definition of ‘child’ as specified in the Juvenile Justice (Care and Protection of Children) Act, 2015, is a person who is under the age of 18. The JJ Act is also relevant to Article 15(3) of the Constitution, which mandates that the Parliament shall pass specific legislation to support women and children. Children who are at immediate risk or who are in danger before they reach the marriageable age are protected under the JJ act.
- The Apex Court has also referred to the fundamental rights that are Articles 14, 15, and 21 of the Indian Constitution. According to Article 21 of the Constitution, the state is required to keep the bodily integrity of girls because they have the right to live with dignity due to this exception. The exception plainly breaches Article 21 since it demonstrates that the husband has complete physical power over his wife and is free to engage in sexual activity with her without the girl child’s consent. The girl child has the right to reproductive freedom and bodily integrity. It is very much possible that getting involved in sexual activity will result in unwanted pregnancies, which will reduce the reproductive possibilities available to female offspring and have an effect on the health of both the kid and the mother. It will eventually cause malnutrition, neonatal mortality, and negative consequences for girl children.
Contention of parties in the case of Independent Thought v. Union of India
Arguments by the petitioner
- The petitioner argued that since Section 375 of the IPC defines rape as sexual intercourse with or without her consent when she is under the age of 16 years, whether the girl is his wife or not has no bearing on whether the act constitutes rape. Therefore, it should not be assumed that the man will receive rape immunity under Exception 2 to Section 375 of the IPC just because she is his wife and he has the right to her body.
- According to the petitioner’s learned counsel, Exception 2 to Section 375 of the IPC is not only discriminatory but also goes against Article 15(3), which instructs Parliament to make special provisions for women and children. Instead of uplifting these groups and implementing the provisions, however, the girl child is severely disadvantaged, which is at odds with the goals and beneficiaries set forth in Article 15(3).
- A female child’s marriage does not automatically imply that she has given her consent to engage in sexual activity with her husband, engage in any other sexual activity, or have conjugal contact with her spouse.
- The counsel for the petitioner also argued that just because something has been done traditionally in the past doesn’t imply it will apply in the present and that it will automatically be prohibited as a crime. The difference between a married girl between the ages of 15 and 18 having sex with or without her consent not constituting rape and a girl under the age of 18 having sex with or without her consent constituting rape shows a blatant bias.
- For the reasons outlined by the petitioner, a girl who has been married and is younger than 18 years old lacks emotional, physical, and mental stability. This will negatively affect the girl child’s general well-being, her physical and mental health, as well as her nutrition, education, and employability. Married girls under the age of 18 have never, under any scenario, given their implied or explicit consent to engage in sexual activity.
- Because a female under the age of 18 will have emotional impacts and potential medical issues, the marriage age is minimised to 18 years of age. The majority of child marriages result in unintended births at such a young age, which causes neonatal mortality and poor health for both the mother and her child.
- The petitioner’s learned counsel further stressed that the Law Commission of India’s 84th report noted numerous inconsistencies in the laws relating to the rape of girls under the age of 18. In their 172nd report, the Law Commission recommended adding an exception to Section 375 of the IPC to raise the age from 15 to 16 so that sexual activity with her husband would not constitute sexual assault if she was more than 16 years old. But the Hon’ble Supreme Court did not accept the LCI’s proposal. Therefore, it is absurd to assume that the girl who is married has consented to any sexual intercourse. When necessary, the law requires us to develop and adapt. Why is it that only in Exception 2 to Section 375 of the IPC, the age of a married woman is 15 years old when the age of a girl is 18 years in every other law? As a result, it is ruled to be arbitrary in character because it is unfair and inequitable to the rights of the girl child.
- It is apparent when an action is arbitrary in character that it violates our Constitution. Therefore, it is clear that when a constitutional provision is broken, it is arbitrary in character and can be suppressed or declared to be unconstitutional. The arguments presented by the respondents were illogical and arbitrary in character. It’s not always clear that anything will be against the standards of the current society and therefore be considered to be against the law and a criminal offence just because it has been done for a long time as a customary practice.
Arguments by the respondents (UOI)
- The arguments offered by the respondents against the counsel appearing on behalf of the petitioner were as follows: they claimed that the country’s economic and educational progress is bad and not getting better. In order to protect the rights of husband and wife in criminalising sexual actions between them, they agreed to keep the age of 15 years as specified in Exception 2 to Section 375 of the IPC.
- In accordance with the National Health Survey’s third report, 46% of women are under the age of 18. In India, there are also thought to be 23 million child brides. Therefore, criminalising the consummation of marriage and tying it to such a terrible and heinous crime as rape would be entirely wrong and unrealistic. Given India’s socioeconomic situation, it would be wrong to punish child marriage as per Exception 2 to Section 375 of the IPC because it has long been a common practice that is based on societal norms and basic realities as well as tradition.
- In its 172nd Report, the Law Commission of India (LCI) recommended that there should be an increase in the age of the wife to 16 years old. However, this recommendation was abandoned following extensive consultations with various stakeholders. Simply because it was a custom shouldn’t be enough to convict the husband of rape if the marriage was consummated at the age of 15. Because it is required that laws be developed in accordance with standards that did not negatively impact a particular class or community, taking into account social and historical traditions and norms, the 15-year limit should remain in Exception 2 to Section 375 of the IPC.
- It was said that the Constitution provides for recourse for children who have not reached the age of 18 and are in immediate danger by citing the Juvenile Justice (Care and Protection of Children) Act, 2015. Before determining whether or not Exception 2 to Section 375 of the IPC is arbitrary, it is important to understand whether a law, regulation, or act can be invalidated just because it is arbitrary in character. In the case of Indira Gandhi v. Raj Narain (1975), the insertion of Article 329A was challenged due to its arbitrary nature. The true meaning of the rule of law, as described by A.V. Dicey, was undermined and harmed by these arbitrary clauses.
- According to Exception 2 of Section 375 of the IPC, the husband is exempt from being charged with rape, but under other legal provisions, he will be held accountable for other offences. For example, if the husband beats a girl child and engages in sexual activity with her, he will be held accountable under Sections 323, 324, and 325 of the IPC, but he cannot be held accountable for the offence of rape. This is unusual because the husband will be found guilty of less serious offences.
- One of the questions presented during the proclamation of judgement is whether the court is creating a new offence by partially or completely invalidating a particular law or rule. It does not imply that the court cannot create a new offence, but there is no question that by partially invalidating Section 375 of the IPC, the court is establishing a new offence.
Justice Madan Lokur
- He claimed that a child is a person under the age of 18 who is authorised to safeguard her human rights, including the right to live with dignity, and she must be safeguarded from domestic violence as well. He cited the Law Commission of India’s 172nd Report, the Human Rights Council, the Protection of Human Rights Act of 1993, and the Juvenile Justice Act of 2015.
- If the husband of a girl child engages in sexual activity with her and conducts a penetrative sexual assault, he is guilty of an offence under the POCSO Act. Exception 2 of Section 375 IPC, which is not rape as specified under this exception, is contained in this system of pro-child legislation. In order to empower women and end their socioeconomic disadvantaged status, Article 15(3) of the Constitution was included, which could lead to gender equality. Furthermore, there is no question that Article 21 of the Indian Constitution defines a woman’s right to choose her reproductive options as a “personal liberty.”
- Rape should be viewed as a horrific crime since it traumatises the victim and takes away her right to choose whether or not to have children. This warrants serious consideration and discussion. As a result, there is a conflict between the POCSO Act and IPC provisions. Thus, under Exception 2 of Section 375, the rape of a married girl between the ages of 15 and 18 is not a crime under the IPC; rather it is a crime of aggravated penetrative sexual assault under Section 5(n) of the POCSO Act and is penalised under Section 6 of the POCSO Act.
Justice Deepak Gupta
- According to him, the Indian Constitution’s Articles 14 and 21 are the key topics of concern in this case. The legislative history makes it abundantly obvious that everyone under the age of 18 is a child since a person under the age of 18 is still developing and does not understand the repercussions of his or her actions. He continued by saying that it is entirely up to Parliament to determine the legal age for marriage as well as the age at which consent must be given under clause(6) of Section 375 IPC.
- Additionally, he expressed his opinion and agreed with Justice Madan that a girl under the age of 15 who is forced to be exposed to sexual activity by her spouse suffers harm to her body and mind because they have not yet fully grown.
- As a result, the state cannot be used to defend the custom and sanctity of girl-child marriage, which is a complete violation of Articles 14, 15, and 21 of the Indian Constitution. Insofar as girl child’s issues are concerned, there are a few other factors that render Exemption 2 of Section 375 IPC totally discriminatory.
- The Indian constitution’s Article 15(3) was taken into consideration, and the top court deduced from Dr. B. R. Ambedkar’s text that the amendment backed particular provisions for women and children in order to incorporate them into society and free them from patriarchal dominance. However, by providing particular arrangements for Scheduled Castes and Scheduled Tribes, the same merger could not be accomplished. It would also isolate them from the normal population and have the opposite impact.
- The court acknowledged everyone’s right to privacy, including unrighteous women, while taking into account the right to physical integrity and reproductive choice. Judges also took into account the need for legal penalties for voice sample collection, which may have an impact on women’s bodily integrity. According to the court’s ruling in response to the respondent’s defence, “The only thing that can destroy the “institution” of marriage is legislation making it illegal and punishable. Marriage is not institutional; it is personal. Marriage is something which is personal and not any ceremony institutionalised by the government. The institution of marriage can only be destroyed if there is a law which makes it unlawful and punitive.
- The court stated that “the subject matter and the viewpoint of the statute are definitive of the question of whether a statute is a general law or a special law” while interpreting the special laws for children. Therefore, a statute may be a special law for particular reasons. It might, nevertheless, be a general law for various purposes contrasted to another statute.
- In his ruling, Justice Deepak Gupta stated that in our constitutional system, where there is a separation of powers, each source of power must acknowledge the other. He did this while examining the wisdom of Parliament in restricting the age of 15 in exception 2 of Section 375 of the IPC. This Court must treat the Parliament with the deference that is due. One cannot and should not blame lawmakers for being ignorant. He also pointed out that courts are responsible for declaring laws invalid when it can be proven that they violate the constitution or a citizen’s fundamental rights.
Finding of the court
After contemplating the facts of the case and other factors pertaining to the petition, both judges came to the conclusion in independent judgments that Exception 2 of Section 375 of the Indian Penal Code, 1860 as it relates to girl child under the age of 18 is liable to be quashed for it is arbitrary and a violation of a girl child’s rights that is not plausible and equitable and also infringes Article 14 and 15 of the Constitution. In addition, it goes against POCSO’s rules, which must be followed. It was decided that Exception 2 to Section 375 of the IPC should be read down since it is objectionable and unconstitutional. The fact that there is already an offence under Section 375 of the IPC and under Sections 3 and 5 of the POCSO Act eliminates the possibility of introducing a new offence. In order to avoid creating any new offences, the Supreme Court read down Exception 2 to Section 375 of the IPC.
By delivering this historic and landmark verdict, which allowed the female child the opportunity to live in a better, freer, and safer environment, the Independent Thought case took a significant step towards recognizing the rights of the married girl child through this petition. Finally, the court read down Exception 2 to Section 375 of the IPC, which had previously protected the husband from rape charges and allowed him to have sex with his wife with or without her consent as long as she was over the age of 15. As a result of the court’s quashing down of this exception, it is now a heinous crime to have sexual intercourse with a wife without her consent when she is above the age of 15 years. The court preserved the lives of countless young girls by reading down this ruling, giving women the same rights as males.
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