Research material of Peti ti oner

1. Whether the amended Sections 354 and 375 of the Sindhian Penal Code, 1860, are violative of
Articles 14 and 15 of the Constitution of Sindhia?

Yes, article 14 and 15 are violative by sections 354 and 375.

AMENDED sections

Amendment to Section 354 – For section 354 of the Penal Code, the following section shall be
substituted, namely: — ‘‘354. Whoever assaults or uses criminal force to any person, intending to
outrage or knowing it to be likely that it will thereby outrage the modesty of that person shall be
punished with imprisonment of either description for a term which shall not be less than one year but
which may extend to five years, and shall also be liable to fine.’’

"375. Any person is said to commit Sexual Assault if that person.

(a) penetrates their genital, to any extent, into the genital, mouth, urethra or anus of any other

person or makes that person to do so with them or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the genital,

the urethra or anus of any other person or makes that person to do so with them or any other

person; or

(c) manipulates any part of the body of any other person so as to cause penetration into the

genital, urethra, anus or any part of body of such person or makes that person to do so with

them or any other person; or

10

(d) applies their mouth to the genital, anus, urethra of any other person or makes that person

to do so with them or any other person, under the circumstances falling under any of the

following seven description:

First.—Against the other person's will.

Secondly.—Without the other person's consent.

Thirdly.—With the other person's consent, when that person's consent has been obtained by

putting them or any person in whom they are interested, in fear of death or of hurt.

Fourthly.—With the other person's consent, when a man knows that he is not that person's

husband and that the person's consent is given because they believe that he is another man to

whom they are or believe themselves to be lawfully married.

Fifthly.—With the other person's consent when, at the time of giving such consent, by reason

of unsoundness of mind or intoxication or the or the administration by the person personally

or through another of any stupefying or unwholesome substance, the other person is unable

to understand the nature and consequences of that to which they give consent.

Sixthly.—With or without the other person's consent, when they are under eighteen years of

age.

Seventhly.—When other person is unable to communicate consent.

Article 14 in The Constitution Of India 1949

14. Equality before law The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth

 Satyawati Sharma v. The Union of India it was observed: “legislation which might be quite reasonable
and rational at the time of its enactment may with the lapse of time and/ or due to change of
circumstances become arbitrary, unreasonable and violative of the doctrine of equality.”

Under the IPC, a husband can be liable for any sexual offence except rape; for instance, he is liable under
Section 354 of the IPC. There is no rational nexus as to why there is a lack of uniformity in the notion of
marriage and the reasonable level of interference in the sanctity of marital affairs. If it is argued that
rape is an offence of a higher degree in terms of punishment and severity of the act, such an argument is
of no meritorious consequence, as the term of punishment of a crime does not distinguish it from other
crimes. An offence does not become more “interfering” because it is more “serious” in nature due to its
term of punishment. Rather, an offence of a higher degree should be urgently criminalized, especially if a
similar offence of a lesser degree has already been constituted as a crime. Under the IPC, cruelty, and
molestation are few examples, which are offences without any exception for husbands. They are also
serious offences, which will disturb the so-called harmony in the marital relation in that particular case
alone.

Violation of Article 14, 15 and 19

Section 375 of IPC has an exception which states that: sexual intercourse by a man with his own wife, the
wife not being under fifteen years of age, is not rape. This exception, by the virtue of the judgment
in Independent Thought v. The Union of India was struck down as being unconstitutional. After the
judgment, there is an unreasonable differentiation that has been created on the basis of the age of the
married woman and between a married and an unmarried woman. By the mere virtue of her being
above the age of 18 or married does not destroy her right to bodily integrity, self-respect and right to
decline to engage in sexual intercourse, which by the lack of mention of marital rape is being statutorily
denied. When a woman enters into the union of marriage, her self is not consumed by the
consummation of her marriage to another. A marriage should not disable her sense of ownership over
herself and self-esteem within herself. Rape, under section 375 of IPC defines it in strictly medical terms
as the penetration by the man, either by the penis or an object manipulated by him. According to the
judgment in C.R. v UK and Eisentadt v. Baird, it is clear that “rape remains rape whether it is defined as
‘penetration’ or ‘aggravated sexual assault’ (as in the POSCO Act, 2012); it cannot be legislatively wished
away as non-existent” merely on a technicality.

Rather, the severity of the heinous crime is not in the act but in the effect it leaves on the victim. Unlike
murder, which destroys just the bodily integrity of the victim, rape violates bodily integrity, destroys her
spirit, causes trauma and mental distress, and sometimes affects her reproductive health and choice by
causing unwanted pregnancies. Rape intrudes in the psychological, physical, sexual and economic well
being of a victim. Notably, in Bodhisattwa Gautam v. Subhra Chakraborty, this argument was even
further extended. The judgment held that “Rape destroys the entire psychology of a woman and pushes
her into deep emotional crisis. It is a crime against basic human rights and is also violative of the victim’s
most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21.” About a
month later, the severity of rape was again echoed in State of Punjab v Gurmit Singh “A rapist degrades
the very soul of the helpless female.” In State of Haryana v. Janak Singh, it was held that “Rape dwarfs
her personality and reduces her confidence level. It violates her right to life guaranteed under Article 21
of the Constitution of India.”

Article 21 of the Constitution of India states that ‘no person shall be deprived of his life or personal
liberty except according to procedure established by law’. The very act of rape is of such an intrusive
nature that non-consensual sex in itself deprives a woman of her personal liberty. By imposing non-
consensual sex upon another, it deprives her of choice over physical, sexual and mental union with a
man. In the light of the recent judgment upholding Right to Privacy as a Fundamental Right, it can be
argued that rape interferes with the privacy of a woman and hence, also violates her Right to Privacy.
The judgment in State of Karnataka v. Krishnappa upheld that “sexual violence apart from being a
dehumanizing act is an unlawful intrusion of the Right to Privacy and sanctity of a female”. Hence, the
lack of criminalization of marital rape interferes with the enjoyment of the Right to Privacy of a woman
and hence, inhibits her Right to Life or Personal Liberty and restricts her from fully exercising her rights.
The Constitution no where mention, nor is there any interpretation of the Constitution which states that
married women cannot fully enjoy their Right to Life or Personal Liberty, nor does any reading of the
recent judgment in KS Puttaswamy v Union of India state that married women are not to fully enjoy
their Right to Privacy. Hence, this unreasonable restriction, in turn, violates Article 14 and Article 15, the
latter on the grounds of sex, as an absence of appropriate legislation which takes into consideration
issues which prevent her from full enjoyment of life similarly to male citizens does not allow her to fully
enjoy her rights and creates an artificial distinction, which does not guarantee her equal protection
before the law. The failure of the law to recognize an issue that riddles married women results in its lack
of protection of married women in the same way it does unmarried women and married girl children.

C.R. v. the UK and Eisentadt v. Baird also firmly upheld that “a rapist is a rapist no matter his relations to
the victim.” In the state’s refusal to accept marital rape as an offence, it is committing the offence of
violating an adult woman’s Right to Equality as a child-married girl is given the right to file against marital
rape. According to Article 14, Right to Equality includes equality before the law or equal protection of the
laws. By creating an unreasonable distinction between married women on the basis of age, the state is
denying equal protection of the laws as the law for girls below 18 allows them to seek remedy under
marital rape. This means that when a woman reaches adulthood and is married she no longer has the
choice to file a case against her husband for marital rape but if she is below 18 she can do so. This
unjustly abridges an adult woman’s rights and is hence, in violation of Article 14.
It cannot be insinuated that absence of legislation absolves the state of any moral or legal responsibility
towards its victims. Rather, no law is the law itself. The lack of recognition in the form of appropriate
legislation gives state sanction to the acts, which are committed due to an absence of relevant legislation
prohibiting these acts. Hence, in this discourse, we can argue on the basis of the test of reasonableness
of a law as propounded in the case of Maneka Gandhi v. UOI. In this judgment, it was held that a law,
which is not “right, just and fair”, is arbitrary. “The principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a
brooding omnipresence and the procedure contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with Article 14.”

This test of reasonableness was further applied in the case of Ajay Hasia and it was held that “wherever
therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an
‘authority’ under Article 12, Article 14 immediately springs into action and strikes down such State
action.” No action of the state can be arbitrary or unreasonable. If the state does not given equal
protection of laws to adult married women as it does to married girl children, is it saying that a girl child
cannot be raped but an adult woman by the virtue of her being an adult and hence, emotionally and
physically stronger than a girl child can? That an adult married woman must resign herself to her fate of
being raped by her husband every day because she is expected to make her peace with it? No
reasonable man would agree that a crime against any human being should be determined by their age or
their supposed capability to endure that crime.

This test of reasonableness clearly shows us the arbitrariness of this classification and the existence of it
despite its legal loopholes. This law is neither “right, nor just nor fair”. It is an arbitrary state action and
does not deserve to live on, as it violates the spirit of the Constitution.

The Penile Penetration Condition is justified on the basis that:

1. It is physically and biologically impossible for a woman to rape a man

2. It is a more serious offence to forcefully penetrate someone that to force someone to penetrate
you

3. Rape is a gendered crime

The Indian Judiciary and society, talk about equal rights for men and women. These dismissals to make
laws for sexual harassment or rape as gender neutral, dismally, showcase the violation of Right to
Equality The Indian Judicial system works hard to protect women from sexual violence, and while that is
a great feat, it is discriminatory to neglect the plight of men who are subjected to sexual violence.

When Public Interest Litigations (PILs) were filed to make rape a gender-neutral crime, it was opposed by
various women groups. International human rights lawyer and activist Vrinda Grover said in an interview
with India Times, There are no instances of women raping men. I don't think men are facing serious
sexual violence issues as women Conversely, about two in five victims of domestic violence are men,
hence contradicting the widespread impression that only women are the ones who face violence on the
hands of their husbands or their families.
However recently, Indian Courts have started to recognise crimes against men and are also punishing
women who are making false allegations against men and consequently, defaming and harassing them.
The Indian Government has also introduced a Criminal Law Amendment Bill, 2019 which, proposes to
make rape laws gender-neutral.

It is time that society starts focussing on equality in gender equality. By having gender-biased laws that
favour women in the cases of sexual violence, most of the cases where men face sexual violence remain
unreported and justice is not served to them. The Indian Judiciary should focus on creating new gender-
neutral laws or amend the current laws to make them gender-neutral so that there is equality amongst
men and women in the country.

Sexual Harassment of Men in the Workplace

When we hear the term sexual harassment, our minds directly assume that the victim is a woman and
the perpetrator is a man. One of the key places where sexual violence takes place is at the workplace.
Over the years, many laws and legislations such as The Sexual Harassment Act for Workplace, or The
Vishakha Guidelines are laid down to prevent sexual violence against women in the workplace. However,
there has been no remedy laid down for men if they are sexually harassed in the workplace.
This does not mean that men are not subjected to sexual harassment in the workplace. Laws have been
implemented to protect women against the evil that is sexual harassment, but we keep forgetting that
men get harassed at the workplace too.
Mostly sexual violence against men in the workplace is done by male colleagues or female bosses. Men
may be asked to lift their shirts, or a certain quid pro quo may exist similar to the one that women in the
workplace face. The only difference is, women have remedies against these harassments, while men
have to silently suffer.
It is time to bring equality and eradicate these gender-biased laws with the implementation of gender-
neutral laws. Equal importance should be given to the protection of men's right at the workplace as
female's rights and men should be engulfed in the Sexual Harassment at Workplace Act 2012 as soon as
possible.

Statistics
During their lives, 1 in 33 men have experienced an attempted or completed rape; 75% occurred before
the men were 18, and 48% before age 12 (Tjaden & Thoennes, 2000).
By age 18, 1 in 4 girls will be sexually assaulted; by age 18, 1 in 6 boys will be assaulted (Finkelhor,
Hotaling, Lewis & Smith, 1990)

As per reports by The Centre for Disease Control and Prevention (CDC):

 Nearly 1 in 38 males have experienced completed or attempted rape during his lifetime

 About 1 in 4 male rape victims experienced it for the first time between 11-17 years old

 About 1 in 4 male rape victims reported that it occurred before age 10

The Centre for Disease Control and Prevention (CDC) in the United States conducted a study in 2010-
2012 and found that 1 in 17 men reported being forced to penetrate at some point in their life. Among
male victims who were raped by being forced to penetrated, 13.5 percent reported that the perpetrators
were female. Even when it comes to suicide, the rate of men committing suicide is greater than the rate
of women committing suicide. And the fact of the matter is that Indian married men are twice as likely to
commit suicide. Nearly 1 in 5 women (18.3%), and 1 in 71 men (1.4%) have been raped at some point in
their lives, including attempted forced penetration, complete forced penetration, or alcohol/drug
facilitated penetration. However, it should not be neglected that the corresponding figure for women is 1
in 5 which amounts to almost 20% and while the figure for women is higher, the figure for men is by no
means negligible. In a survey conducted by the Indian Government in 2007, children who reported
experiencing severe sexual abuse, including rape or sodomy, 57.3% were boys and 42.7% were girls.
More recently, the Delhi-based Centre for Civil Society found that approximately 18% of Indian adult
men surveyed reported being coerced or forced to engage in conjugal relations. Of those, 16% claimed a
female perpetrator and 2% claimed a male perpetrator. Surveys conducted by Save Family Foundation
and My Nation Foundation, between April 2005 and April 2015 surveyed almost 1,00,000 men during
that one year over the internet. From which they found out that about 98.2% of men had faced serious
domestic violence from their wives and in-laws. Some of the violence men face are physical, verbal,
economical, sexual, mental, emotional, and financial abuse are the violence that men face.

1. 34.3% of men were affected by economic violence

2. 28.6% of men were affected by physical violence

3. 27.5% of men were affected by emotional violence

4. 20.4% of men were affected by sexual violence

5. The lowest violence that all the men surveyed faced was verbal abuse

Health Consequences related to Sexual Violence Against Men

Assuming that males are undergoing violence altogether and females are also predators, it's important
to know and emphasize the consequences of such acts on individual health and behaviour. It may have
different manifestations in individuals' health such as physical, psychological, social, and economic. If
inadequate attention is given, it may lead to prolonged habits of alcoholism, stress, frustration, suicide,
and many more.

Men reported sustaining physical injuries (Hines and Douglas, 2010; Mills et al, 2006), but did not report
compromised physical health (Reid et al, 2008; Coker et al, 2008). However, men who sustained physical
and psychological IPV were more likely to report heavy alcohol use, and therapeutic and recreational
drug use (Coker et al, 2008; Afifi et al, 2009) suggesting that indirectly the physical health of male victims
is harmed.

According to Justice Krishna Iyer, A murderer kills the body, but a rapist kills the soul. Men in India are
raped every day, it is time the citizens acknowledge this fact and support the male victims of sexual
violence when they report the cases and both men and women perpetrators of sexual violence should
be punished equally under law for this brutal crime.

The following changes should be made as soon as possible:

1. Gender-neutral laws should be implemented with the eradication of gender-biased laws

2. Men should be added in the Sexual Harassment in the Workplace 2012.

3. Awareness should be spread regarding sexual violence against men in the form of campaigns,
reports, articles etc.

4. Just like there is a separate court for women, Mahila Adaalat, a separate court should be made
for men too.

5. Separate commissions should be made which deals with research against crimes against men
specifically and the same must be done for women too.

6. Male and female perpetrators of sexual violence should be punished equally without any
discrimination.

Men NGO

Section 375 of the Indian Penal Code (IPC) deals with the offense of rape. Exception II of Section 375 of
IPC decriminalises rape by a husband on his wife. The Right to Equality and Right to life as enumerated
under Article 14 and Article 21 respectively of the Constitution of India stand violated under the
circumstances of marital rape. Articles 14 the Constitution of India guarantees to each person, equality
before the law and equal protection of the laws. The aforementioned legal protection has been further
strengthened by Article 15, which places a greater degree of scrutiny on the State to ensure that its
inhabitants are not subjected to discrimination on the basis of caste, sex, race, place of birth, or religion.
Any disparate treatment of a person, in this case, rape victims, must be justified by an intelligible
differentia that is related in some way to the goal that the statute seeks to accomplish. The right to
sexual autonomy, bodily integrity and the established right to reproductive choice includes the right not
to be raped under Article 21. The State has also failed to present any reasonable object, in consonance
with the status and rights of women in the 21 st Century, that is being attained by discriminating against
women raped by their husbands as opposed to women raped by a man not their husband. By providing
distinct/separate punishment for rape committed by a husband upon his wife separated from him versus
rape by any man of any woman, the statute discriminates against married woman who are "separated"
from their husbands.

A man is a man; an act is an act; rape is a rape, be it performed by a man the "husband" on the woman
"wife"1. The institution of marriage should not grant, cannot grant, and should not be understood to
grant any unique male privileges or a permit for releasing a vicious beast.

The institution of marriage is given a much greater priority over the dignity of a woman. Even if we
accept that there was State's interest in safeguarding the institution of marriage, deeming non-
consensual sex within marriage to be legal and the consequential harm it entails upon the victim is in no
way commensurate to such interest, if any. Rape is an egregious crime that has numerous effects
including mental trauma and adverse medical consequences. It would be arbitrary to decriminalize
marital rape on the basis that by entering into matrimony, a woman approves to a persisted sexual
relationship from which she cannot retract.

The state of being married also does not automatically amount to giving consent to sexual intercourse. A
cruel act of sexual assault on the wife, without her consent, cannot but be termed as rape if it is done by
her husband2. Marital Rape Exception (Hereinafter referred to as MRE) violates the wife's right to
consent to sex within marriage. It puts the privacy of marriage at a higher pedestal than the privacy and
dignity of an individual in a marriage 3. Consent of the wife should not be implied by the relationship
between the accused and the complainant in any event. The nature of the investigation into whether the
complainant gave consent to the sexual conduct is unaffected by the relationship between the accused
and the complainant. The argument that consent was implied by the relationship between the accused
and the complainant, is absolutely absurd and should not be accepted by the Hon'ble Court.

EXCEPTION II OF IPC INFRINGES THE RIGHT TO EQUALITY AS ENUMERATED UNDER ARTICLE 14 OF THE
CONSTITUTION OF INDIA

The rights to equality and to life or personal liberty, as defined in Articles 14 and 21, respectively, of the
Indian Constitution, are violated under Section 375 of the Indian Penal Code's Exception 2. The Indian
Constitution, which aspires to represent equality, serves as the foundation for all laws. The Indian Penal
Code's Section 375 exemption 2 engages in discrimination because under the Code, men who commit
crimes against women are subject to punishment, but this is not the case with Section 375 of the IPC as
it grants a blanket immunity to the husbands to rape their wives. This expression wherein a woman is
treated as a subordinate to the husband abhors equality 4. This amounts to the expression being
regressive rather than progressive.

Every law and every decision is infused with the spirit of Article 14 of the Indian Constitution. Since the
Constitution was adopted, no act has been passed which does not uphold the equality principle outlined
in Article 14 of the Indian Constitution. The Constitution is the source of all laws; it is not merely a
statute. If the Constitution directs equality, then the statute must follow suit. MRE infringes Article 14 as
the relationship between the perpetrator and the victim has no reasonable nexus with rape laws 5.
Inequality penetrates into such a law provision if a male, a spouse, can be shielded from an allegation of
commission of ingredients of Section 375 of the IPC. As a result, it would be in contrast to what the
Constitution's Article 14 upholds. According to the Constitution, everyone must be treated equally,
regardless of gender or other characteristics. The standard outlined in Article 14 of the Indian
Constitution would be invalidated by the slightest thought of inequity in any legal instrument. Men and
women being equal under the Constitution cannot be made unequal by Exception 2 to Section 375 of
the IPC.

It is for the lawmakers to mull over the presence of such inequalities in law. For ages man donning the
robes of a husband has used the wife as his chattel, but his crude behaviour notwithstanding his
existence because of a woman. The long-held belief and custom that husbands are in charge of their
wives' bodies, minds, and souls should be abandoned. C ases of this nature are growing only because of
this antiquated, backwards, and predetermined idea. In fact, this is in the public domain. A terrible act of
sexual assault on the woman, even when it was committed by the husband, should invariably be referred
to as rape. This type of sexual assault by any husband on his wife results in grave consequences on the
mental sheet of the wife. She continues to experience both psychological and physical effects from it.
Such spouse behaviour leaves its mark on the spirit of the wife. It is, thus, crucial for the lawmakers to
now "hear the voices of silence"6.

EXCEPTION 2 OF SECTION 375 OF IPC VIOLATES ARTICLE 21 OF INDIAN CONSTITUTION

Article 21protects rights of a woman to life, dignity, and bodily privacy which extends into her right to
physical and emotional wellbeing as well. She has the freedom to decide how to make reproductive
choices, which means that under the domain of personal liberty, she is free to refuse engaging in any
kind of sexual activity7. This was held in the case of Suchita Srivastava v. Chandigarh
Administration8 which was affirmed in the case of K.S. Puttaswamy9.

In the case of D.K Basu vs. State of West Bengal10, it was held that Article 21 protects people from all
forms of torture and other cruel, inhumane, or humiliating treatment. The Court further ruled that a
prisoner does not lose his right to life and dignity while serving a prison sentence. Similarly, married
women's freedom to choose whether to engage or refrain from having sexual relations with their
husbands cannot be separated from a prisoner's legal rights. Married woman do not shed their right to
consent and be free from rape just by being married 11.

Restating the scope of Article 21, the Supreme court in the case of Bodhisattwa Gautam v. Subhra
Chakraborty12, further at para 9 stated that Women have the same rights to life and liberty as men do, as
well as the right to respect and equal treatment under the law. They must be given the liberty, the
freedom, and the independence to fulfil the roles that were naturally given because they are the only
ones with the skills and ability to influence the course of human history and the nature of men
everywhere in the world. The Supreme Court went on to say that rape is a crime not only against the
victim but also against society as a whole. It completely devastates a woman's mind and causes her to
experience severe emotional traumas. It is only by her sheer will power that she accommodates herself
again in the society which, on coming to know of the rape, looks down upon her in derision and
contempt. Unfortunately, the societal component of the issue is not addressed by the rape laws, which
are also ineffective in many other ways.13

MRE BEING UNREASONABLE, VIOLATES OTHER FUNDAMENTAL RIGHTS AS WELL

MRE violates Article 15 of the Constitution since it is based on an antiquated interpretation of assigned
gender roles in marriage. MRE also violates Article 15(3) of the Constitution by weakening the autonomy,
physical sovereignty, and legal safeguards granted to married women who are raped 14. It was observed in
the case of Independent Thought15. This exception could also be overturned on the grounds that it
violates Article 19(1)(a) of the Constitution, which protects the right to free speech and expression.
Intimate sexual actions are a part of a person's right to freedom of expression, however they are subject
to the appropriate limitations set forth in Article 19(2)16. This was observed in the case of Navtej Singh
Johar17

Again, in the case of Prahlad v. State of Haryana18, the Supreme Court at para 17 held that "It must be
remembered that rape is essentially an offence against the victim's human rights. It is an assault on a
married woman's individuality. Her right, free will, and personal sovereignty over the body are
permanently damaged. Anyone who commits a crime of this kind does so in violation of the Indian Penal
Code's penal provisions, as well as the rights to equality and individual identification and, ultimately, a
crucial component of the rule of law, which is a constitutional obligation. Rights are granted by the
Indian Constitution which is an organic document. It makes no concessions or bestows any kind of favour
or grant"19. Therefore, failing to recognise non-consensual sexual activity during marriage as a kind of
rape and failing to provide married women with adequate protection and legal recourse constitutes a
flagrant and serious breach of Articles 14 and 21 of the Indian Constitution.

EXCEPTION II OF SECTION 375 OF IPC IS UNCONSTITUTIONAL

Even if a husband complies with all the requirements listed in Section 375 of the IPC, he cannot be
prosecuted for offences covered by Section 376 of the IPC. If a man can be punished for something, he
should be punished for it whether he is a husband or not. According to Article 14 and 21, the right to
equality and the right to life or personal liberty are both violated by Section 375 of the Indian Penal
Code, Exception 2.

There is an ex-facie infringement of a married woman's fundamental rights under Article 15(1) of the
Constitution and the State now has the burden of proving the statute's validity because no legal
exemption can be so complete as to serve as a licence for the commission of a crime against society. It is
impossible for the husband to be completely exempted from personal accountability for the commission
of such an assault or rape under the peculiar facts and circumstances of the specific case 20. Several
married women have been raped by their husbands as a result of MRE. Because of the marital rape
exception, many wives experience regular physical, mental, and emotional harm. If a married woman has
been forced to sexual activity without her consent, the clause offering the husband protection must be
seen as an oppressive tool.

The act of engaging in sexual activity with the wife despite her clear "no" should be considered rape.
MRE is an exemption rather than an exception. The moral right of a married woman to reject unwelcome
and coerced sexual contact is at issue in this case. It also involves acknowledging that marriage is no
longer a universal excuse to disregard consent and honouring a wife's freedom to say no. The Central
Government on 22nd December 2012 appointed a committee, headed by (retd.) Chief Justice of India,
Justice Verma, to propose amendments in criminal law to check offenses against women. This Report
noted that where legislators have been inactive despite the advice of expert groups, constitutional
courts should declare laws that are determined to be unconstitutional. The "effect test" must be used by
courts when determining whether a provision or statute is legal or not and to establish whether an
artificial distinction is created between different classes of persons. This was observed in the case
of Anuj Garg21.

FINDING OF REPORTS AND COMMITTEES THAT DECLARE MRE AS UNCONSTITUTIONAL

In its report dated 23 January 2013, the Justice Verma Committee made a number of recommendations,
including the repeal of Exception 2 to Section 375 of the Indian Penal Code and the recommendation
that the relationship (marital or otherwise) between the accused and the victim should not be taken into
account as a defence. The committee further advised against using the relationship between the accused
and victim as a defence for lighter rape sentencing.

Speaking through its Special Rapporteur on Violence Against Women, the Human Rights Council stated
that in order to maintain India's commitment to the Universal Declaration of Human Rights, it was
necessary to "include a description of marital rape as a criminal offence." The International Covenant on
Civil and Political Rights (ICCPR) of 1976 expresses that all parties to the said covenant undertake to
respect and ensure that all individuals within their jurisdictions have the rights recognised in the
covenant without discrimination based on religion, sex, colour, language, birth or status, etc. The marital
rape exemption is thus a clear violation of Article 2 (1) of the ICCPR. The state is also required under
Article 3 of the covenant to guarantee that men and women have equal access to and enjoyment of all
civil and political rights. While Article 9 acknowledges the right to liberty and security of the person,
Article 7 forbids the use of cruel or degrading treatment 22.

In a comprehensive report on 82 legal systems published in late 2014 and early 2015, titled "The World's
shame: The global Rape Epidemic," the data that was gathered showed that India was among at least 10
of the 82 countries that still legalised rape within marriage and protected the rapist husband from
prosecution rather than protecting the wife who experiences rape, assault, or abuse at the hands of the
husband. In addition, a UN Women report titled "Progress of World's Women: In Pursuit of Justice"
found that India was one of the few countries that still allow men to defend violence against their
wives23.

THE INSTITUTION OF MARRIAGE IS GIVEN GREATER PRIORITY OVER THE DIGNITY OF A WOMAN

The institution of marriage has always taken precedence over a woman's personal freedom and rights.
This raises the question of whether a social institution should take precedence over a woman's overall
emotional and physical well-being. Even if one were to concede that the State had a stake in preserving
the institution of marriage, legalizing extramarital sex and the harm it causes the victim as a result are in
no way commensurate with the State's interests. The horrible act of rape has a number of negative
outcomes, such as psychological trauma and serious negative health implications 24. It is arbitrary to
assume that a woman has consented to be in a continuous sexual relationship just because she decided
to enter matrimony.

Historically many theories emerged to justify the poor treatment of women by their husbands, Women
were considered chattels of their husband25, so the question of rape was never even raised as the
husband was master of the wife and could do as he pleased. The rights and bodily autonomy of women
were totally violated by this concept. No amount of categorization or word juggling can change the fact
that rape is rape and a rapist remains a rapist. Notably, a married woman does not have the same rights
as other women, including sex workers, who can deny consent and pursue rape charges 26.

HARMFUL EFFECTS OF MRE ON THE SOCIETY AT LARGE

Since a married woman cannot accuse her husband of rape when she does not really consent to a sexual
act, MRE has the effect of making the wife's lack of permission irrelevant. There can be no greater
indignity that the law can heap upon a woman than to deny her the right to prosecute for violation of
her bodily integrity, privacy and dignity, that too, at the hands of her husband from whom she would
legitimately expect to receive love and affection and who would be expected to safeguard her interests 27.

The argument that the husband could be charged under other laws, such as those relating to assault
(Section 351 of IPC), sexual harassment (Section 354A of IPC), or outraging her modesty (Section 354 of
IPC), ignores the fact that, if this submission is accepted, it would trivialize an act that has serious and
irreversible psychological and physical effects on the victim and because of this reason alone, MRE
deserves to be overturned. The claim that the court cannot invalidate MRE because it will result in
discrimination against men because Section 375 of the IPC is gendered is extremely erroneous. The
question before the court is whether MRE is legal and justifiable, not whether Section 375 or any portion
thereof should be made gender neutral. Article 15 of the Constitution mandates positive discrimination
in favor of women, and as a result, Section 375 and other laws and provisions defend this Article.

We urgently need to re-evaluate MRE's applicability. The MRE has been abandoned by many countries
across the world. It is crucial to note that following the Nirbhaya gang rape case, the Criminal Law
(Amendment) Act of 2013 included a number of reforms in criminal law, in accordance with the
recommendations made by the Justice Verma Committee, which included a suggestion to eliminate
MRE. Since then, legal reforms have been implemented, and the autonomy and sexual agency of every
person, including married women have been recognised 28.

REASONS FOR REMOVAL OF MARITAL RAPE EXCEPTION

MRE is an archaic, anachronistic and offensive provision, which has become redundant in modern
India29. It is arbitrary because it aims to decriminalise a heinous act like rape. Creating a distinction
between husbands who are not separated from their wives and those who are separated by including
the latter class of husbands within the definition of rape in regard to forced sexual intercourse under
Section 375 and assigning lesser punishment for such a crime makes Section 376B of the IPC
unconstitutional.

Rape has serious negative health implications in addition to causing mental trauma. To imply that a
woman consents to an ongoing sexual relationship from which she cannot withdraw by entering into
matrimony would be arbitrary. Marriage cannot be taken into account when determining whether or not
a crime has been committed. The rape of a woman by her husband was unlawful from the start, but it
has only recently been put to the test. The court shouldn't stop looking into whether the rules in
question are constitutional because it is impossible to prove the occurrence of marital rape because it
occurs within the confines of a household. Additionally, the court should not stop looking into the
constitutionality of MRE because some women might make up complaints against their husbands 30. Law
provisions that promote a marriage institution which devalues equality are arbitrary and improper in the
view of the law31.

MRE is also faulty because it raises the husband's expectation of sex to the husband's right to engage in
forceful sexual activity with his wife without first obtaining her agreement. Therefore, the expectation of
sex cannot be rationally related to the goal that is being pursued. The legal distinction between forced
sexual contact by a spouse and those who are not husbands is illogical and has no connection to the goal
of Section 375 of the IPC32. In addition to providing a general immunity or exemption to sexual actions
listed in clauses (a) to (d) of Section 375 of the IPC, MRE also absolves husbands of the terrible crime of
severe rape, including rape that results in the victim's death or persistent vegetative state 33. Also, the
2013 and 2018 changes to the rape legislation must be taken into consideration while determining
whether Exception 2 of Section 375 of the IPC is constitutional 34.

THE STATE OF BEING MARRIED DOES NOT AUTOMATICALLY AMOUNT TO GIVING CONSENT TO SEXUAL
INTERCOURSE

A married woman's fundamental rights are violated by the MRE. The effectiveness of MRE must be
evaluated by taking into account how it affects the liberties that women are allowed by the
Constitution35. MRE leaves a married woman devoid of her sexual autonomy. In the context of marriage,
the provision places the wife below her husband. Therefore, MRE is obviously arbitrary 36.

MRE violates a married woman's freedom to agree to sex. It also elevates the institution of marriage
above her personal space and moral integrity. The attempt to privilege the institution of marriage over
the rights conferred on an individual i.e., the victim-wife under Article 21 of the Constitution can only be
seen as an unconstitutional object37.

The protection of conjugal rights by not punishing forced sex within marriage is no longer an acceptable
goal following the enactment of the Constitution 38. Although the court has the authority to order any
party-a husband or a wife-to cohabit, it cannot compel them to engage in sexual activity. Therefore,
refusing to cohabitate with the spouse can only result in property being attached or being imprisoned in
a civil facility. Therefore, denying a spouse sex may put a person's property and freedom at danger
without compromising that person's bodily integrity or sense of autonomy. Section 9 of the Hindu
Marriage Act of 1955 can be cited as an example. The judgment rendered by the court in Harvender
Court v. Harmander Singh39, as also the decision rendered by the Supreme Court in Saroj Rani v.
Sudarshan Kumar Chadha40 can also be referred in this regard. Hence, we can see that the expression
"conjugal rights" cannot include non-consensual acts, for example, in Clauses (a) and (b) of Section 375
of IPC.

A victim-wife may also be prevented from bringing a case against her husband for cruelty under Section
498A, for injury under Sections 323 and 326, or for outraging her modesty under Section 354 of the IPC if
the non-consensual sexual activity is not accompanied by physical assault.

According to the National Family Health Survey (NFHS) data from 2015-2016, 83% of married women
between the ages of 15 and 49 had experienced sexual assault at the hands of their "current husbands."
Similarly, the analysis of NFHS data shows that about 99.1% of sexual assault instances go unreported,
and the attacker is typically the victim's husband. A woman is 17 times more likely to experience sexual
assault from her husband than from other people, according to the research. Additionally, statistics
shows that just 15% of sexual offences done by anyone other than the victim's present husband are
reported41.

Rape can be defined as "the ravishment of a woman, without her agreement, by force, terror, or
trickery" in simple terms. The phrase "the carnal knowledge of a lady by force against her will" is another
way to describe it. In India, husbands are provided a blanket license to sexually assault their wives under
Exception 2 of Section 375 of IPC. Hence, it is justified to consider making marital rape a crime. Marital
rape should be criminalised since it is an offence against married women as well as the society as a
whole42. It also satisfies the actus reus and mens rea requirements for criminal action. Certain offences
are treated as criminal rather than civil because they cause harm to both the victim and society as a
whole. Rape creates deterrence in mind of women and restricts them from enjoying their sovereignty,
liberty and autonomy. It has both a psychological traumatising effect and physical inhibitory effects,
hence it is crucial to eliminate the MRE exception. Therefore, there is no justification for the exemption 2
of Section 375 to be sustained in the IPC.

 Rape is rape, be it by man or husband: Karnataka High Court on marital rape, First Post, (September 29,
2022), https://www.firstpost.com/india/rape-is-rape-be-it-by-man-or-husband-karnataka-high-court-on-
marital-rape-10483101.html
2
 Arvind Gunasekar, On Criminalising Marital Rape, A split verdict. Next stop, Supreme Court, NDTV, (5
October, 2022), https://www.ndtv.com/india-news/on-criminalisation-of-marital-rape-split-verdict-from-
delhi-high-court-2965530
3
 MANU/HP/0025/2021
4
 Hrishikesh Sahoo v. State of Karnataka 2022 SCC OnLine Kar 371: (2022) 2 KCCR 145: (2022) 2 KCCR (SN
109) 145
5
 RIT Foundation v. Union of India, MANU/DE/1638/2022
6
 Hrishikesh Sahoo v. State of Karnataka 2022 SCC OnLine Kar 371: (2022) 2 KCCR 145 : (2022) 2 KCCR (SN
109) 145
7
 RIT Foundation v. Union of India, MANU/DE/1638/2022
8
 Suchita Srivastava v. Chandigarh Administration, MANU/SC/1580/2009
9
 Justice K.S. Puttaswamy v. Union of India, MANU/SC/1044/2017
10
 D.K Basu vs. State of West Bengal, MANU/SC/0157/1997
11
 All India Democratic Women's Association (AIDWA) v. Union of India, 1989 AIR 1280, 1989 SCR (2) 66
12
 Bodhisattwa Gautam v. Subhra Chakraborty, MANU/SC/0245/1996
13
 All India Democratic Women's Association (AIDWA) v. Union of India, 1989 AIR 1280, 1989 SCR (2) 66
14
 Hrishikesh Sahoo v. State of Karnataka 2022 SCC OnLine Kar 371: (2022) 2 KCCR 145: (2022) 2 KCCR (SN
109) 145
15
 Independent Thought v. Union of India, MANU/SC/1298/2017
16
 Hrishikesh Sahoo v. State of Karnataka 2022 SCC OnLine Kar 371: (2022) 2 KCCR 145: (2022) 2 KCCR (SN
109) 145
17
 Navtej Singh Johar v. Union of India, MANU/SC/0947/2018
18
 Prahlad v. State of Haryana 2015 (8) SCC 688
19
 All India Democratic Women's Association (AIDWA) v. Union of India, 1989 AIR 1280, 1989 SCR (2) 66
20
 Hrishikesh Sahoo v. State of Karnataka 2022 SCC OnLine Kar 371: (2022) 2 KCCR 145 : (2022) 2 KCCR
(SN 109) 145
21
 Anuj Garg & Ors. v. Hotel Association of India & Ors., MANU/SC/8173/2007
22
 All India Democratic Women's Association (AIDWA) v. Union of India, 1989 AIR 1280, 1989 SCR (2) 66
23
 All India Democratic Women's Association (AIDWA) v. Union of India, 1989 AIR 1280, 1989 SCR (2) 66
24
 RIT Foundation v. Union of India, MANU/DE/1638/2022
25
 Jacob K, To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6)
HARVARD LAW REVIEW, 1255 (1986)
26
 CR v. UK, Independent Thought; and State of Maharashtra v. Madhukar Narayan Madikar, (1991) 1 SCC
57.
27
 RIT Foundation v. Union of India, MANU/DE/1638/2022
28
 Nimeshbhai Bharatbhai Desai v. State of Gujarat, MANU/GJ/0291/2018
29
 RIT Foundation v. Union of India, MANU/DE/1638/2022
30
 RIT Foundation v. Union of India, MANU/DE/1638/2022
31
 Joseph Shine v. Union of India, MANU/SC/1074/2018
32
 Independent Thought v. Union of India, MANU/SC/1298/2017
33
 Indian Penal Code,1860, § 376A and § 376D
34
 RIT Foundation v. Union of India, MANU/DE/1638/2022
35
 Justice K.S. Puttaswamy v. Union of India, MANU/SC/1044/2017
36
 Joseph Shine v. Union of India, MANU/SC/1074/2018
37
 RIT Foundation v. Union of India, MANU/DE/1638/2022
38
 John Vallamattom & Anr v Union of India, MANU/SC/0480/2003
39
 Harvinder Kaur v. Harmander Singh Choudhry, MANU/DE/0234/1983
40
 Saroj Rani v. Sudarshan Kumar Chadha, MANU/SC/0183/1984
41
 RIT Foundation v. Union of India, MANU/DE/1638/2022
42
 Marriage is not a valid defense against rape, says committee, The Hindu, (7 October
2022), https://www.thehindu.com/news/national/marriage-is-not-a-valid-defence-against-rape-says-
committee/article4351148.ece

Gender neutral laws

There is a need for rape laws to be gender neutral. Rape is a heinous crime that can happen to anyone,
regardless of their gender or sexual orientation. However, many rape laws around the world are gender-
specific and only recognise women as victims of rape, while men and those of other genders are
excluded from legal protection in the context of rape or other forms of sexual violence/harassment.

However, in 2013, the Indian government passed the Criminal Law (Amendment) Act, which introduced
amendments to the rape laws in IPC. These amendments expanded the definition of rape to include acts
of sexual violence other than penile-vaginal penetration and increased the punishment of rape, including
the introduction of the death penalty in certain cases. 

While these amendments represent a step forward in addressing sexual violence in India, they do not
make the rape laws gender-neutral. In recent years, there have been calls from activists and civil society
organisations to make rape laws in India gender-neutral to ensure that all victims of sexual violence
receive equal legal protection and recognition under the law.
In 2020, the Indian government formed a committee to review the criminal laws related to sexual
offenses and recommended change to the rape laws, including making them gender-neutral. However,
as of March 2023, no such changes have been implemented. 

Rape of males and other gender individuals is an underreported crime due to social stigma and lack of
awareness about these victims. However, there have been some high-profile cases of rape of males in
India. Such cases often get registered under the POCSO Act or the Section 377 (carnal intercourse against
the order of nature). Such cases highlight the need for greater awareness and legal protection for these
victims. It is important to note that the number of cases that are likely to go unreported may be
unimaginably high.

In 2018, a 25-year-old man in Mumbai filed a complaint of rape against a woman he had met on a dating
app. According to the complaint, the woman had invited him to her house, where she allegedly spiked
his drink and sexually assaulted him while he was unconscious. The accused was arrested and charged
under Section 376 of the IPC which deals with rape. 

Such cases highlight the importance of recognising male victims’ sexual violence and providing them
adequate legal protection and support. It is important to note that this is just one reported case; there
may be many more cases of male rape by females that go unreported due to societal attitudes.

But can a female rape a male or those of other genders? Yes, it is possible. Rape is defined as non-
consensual sexual activity and therefore any person, regardless of gender, can be a perpetrator or a
victim of rape.

False accusation of rape

Most of them claim that Section 375 of IPC  is gender-biased since it does not identify where men too can
be the victim. It just provides the right for a female to claim a rape suit. Few of the men’s rights groups,
activists and lawyers believe that false accusation of Rape is found mostly in the cases of consensual
relationships and a woman files a case where these relationships end. Certainly, a woman driven by
revenge and self-interest is not making any false allegations when those relationships end.

Recognizing male’s human and gender rights 

When referring to the protection given to them i.e., to a particular gender of the
society, the other genders (Male & Transgenders) should also be given the same
safety. The provisions of Article 14 and 15 of the Indian Constitution should be
respected.

Protecting a man from always not being a

perpetrator
In the Indian context, it is seen that only a man possesses the ability to rape
and not a female. That is why a man is always held as a perpetrator and not a
victim in the eyes of law. 

Protects that male gender from being sexually

assaulted
The landmark judgement of Navtej Singh Johar Vs. Union of India recognized
the rights of the transgenders and decriminalized consensual homosexuality.
Before the insertion of Section 375A IPC, the sexual assault of males was not
acknowledged which was one of the reasons why judiciary could not interpret
sexual crimes as gender-neutral. 

Lack of provision under law

The reason behind males was not filing a suit for their sexual assault in the past
might be of the fact that no one would believe a man being raped in a
patriarchal society and lack of such laws had no grounds for protecting
themselves.But now, this law is going to create an impact when some
population of men open up that they were sexually assaulted previously. 

Objectives of the Bill

Protection from false accusation

This bill emphasizes various rights of a man protecting himself from False
Accusation of Rape, Preventing the Male Child Abuse, Custodial Rape, Sexual
abuse against youngsters, “No one would believe that a man too can be raped
and be sexually assaulted”. 

Change in recent scenario

The reason for introducing the bill to be gender-neutral because after the
historic judgement where consensual sexual intercourse between the individuals
of the same sex or transgenders under Section 377 was decriminalised but
Section 375 which is co-related to Section 377 recognizes only a woman can be
a victim of rape and neither a transgender nor a man.

Provisions for protection

A petition filed by an advocate Sanjiv K Kumar  challenged the constitutional
validity of Section 375 and 376 IPC. The predominance of a man has been
shown in many sexual crimes such as Rape, Stalking, Voyeurism and Sexual
harassment. The FIR (First Information Report) for these sections can be filed
only by a woman.

Logical fallacy
Mere generalization of a bad nature is not the key, perhaps it is a logical fallacy
as well. It would be wrong to say, “All men are bad.” Though in the name of
positive discrimination for the need of provisions regarding women in the
constitution, it is certain that through positive, but it is still discrimination. 

Discrimination Laws Of Sexual Offences

Sexual offences are heinous crimes that not only pollute the victim's body, but also his or her mind and
spirit. It causes unfathomable suffering. Offences of this sort tarnish a person's modesty, which is pride
over one's own body. What is more lamentable is that this essential aspect of pride is solely attributed to
women. Men's modesty is not recognized by criminal law. Only women's modesty is recognized because
of a definitional feature of criminal law.

 In the Indian Penal Code, 1860, sexual offences are embedded under the canopy of Offences affecting
the Human Body. It may be further categorized into Outraging modesty, Sexual harassment, Disrobing,
Voyeurism, Stalking, Rape, Unnatural offences. According to the definition of these offences as per the
Indian Penal Code, victims of such sexual offences can only be women. The term depicts man as the lone
perpetrator of sexual offences.

All of this suggests that men or transgenders are devoid of modesty, that they cannot be victims of
sexual offences, and that women cannot perpetrate sexual offences. In addition, a woman cannot
commit sexual offences against another woman, and sodomy encompasses all types of sexual offences
committed against men.

Section 354 of the Indian Penal Code,1860 defines the offence of outraging modesty. The victim in such
an offence must be a woman and the perpetrator must have used criminal force to outrage the modesty.
While the Indian Penal Code is silent on what constitutes modesty, however in the case of Tarakeshwar
Sahu v. the State of Bihar, the court held that modesty is connected with women.
Similarly, Section 354A and 354B defines Sexual harassment and Disrobing wherein the victim is a
woman and a perpetrator is a man. However, these provisions provide no mention or define
punishments if the victim is a man or transgender and the perpetrator is a man or a woman.

Section 354C of the Indian Penal Code,1860 penalizes a man for the offence of Voyeurism. It is a crime
where a man watches or captures the image of a woman engaging in a private act in circumstances
where she would usually have the expectation of not being observed either by the perpetrator or by any
other person at the behest of the perpetrator or disseminates such image.

In this case, as well, this section recognizes voyeurism can only be committed by a man towards a
woman and not vice-versa. Another such woman-centric law is Stalking which is defined under Section
354-D of the Indian Penal Code,1860. It penalizes only a man who contacts, monitors, watches, or spies
any woman despite her clear indication of disinterest. However, it fails to recognize a man or
transgender can also be a victim and a woman can also be a perpetrator.

Rape is defined in Section 375 of the Indian Penal Code,1860. It explicitly begins with the words A man is
said to have committed rape, for the simple reason that men are largely viewed as perpetrators, and a
woman sexually coercing a man to make him penetrate her is inconceivable in a patriarchal society.

It held any man guilty if he penetrates his penis or inserts any object or manipulates any part of the body
of a woman so as to cause penetration or applies his mouth to the vagina, anus, urethra of a woman or
makes her to do so with him or any other person against her will, consent and without any fraud.

For a long time, attempts have been made to make rape law gender-neutral. The first attempt was made
by the 172nd Law Commission of India in 2000. However, the recommendations were not incorporated
into the law of the land. Another attempt was made after the infamous Delhi gang-rape case, where a
committee was formed under the former Chief Justice of India, Justice J.S.Varma to recommend
guidelines for the protection of women.

One of the recommendations of the committee was to make rape gender-neutral only in so far as the
victim is concerned and the perpetrator should remain a man. Nonetheless, due to the resistance shown
by some women rights' organizations that rape is a crime largely affecting women and any attempt to
make it gender-neutral would worsen the situation of a woman. Therefore, this recommendation was
not implemented.

CRPC

Alterations required
This Criminal (Amendment) Bill, 2019 would make alterations in the Indian
Penal Code, Code of Criminal Procedure and the Indian Evidence Act to amend
the word “Man” or “Woman” to “Any person” or “other person”. It also proposes
to replace the terms ‘penis’ and ‘vagina’ with “genitals”. Earlier, they held it that
only a man can commit rape since they held it of the fact that only he can be
the perpetrator and only the women being the victim. 

The expression has stood perfect that “Changing times and their conclusions
offer an insight to anything anyway of procuring something positive or negative,
the prevalence of evil in progress”. Likewise, we have marked many features
influential in society’s modification. One of the most contentious issues from
ancient times to this contemporary world has had the provocation for the
existence of gender-neutral rights. The aphorism of this bill was to make the
Sexual Crimes gender-neutral. 

2. Whether the Jurisdictional Court is justified to levy pro tem compensation based on the facts
and proceed with the trial in view of the Constitution of Sindhia?

Compensation in cases where the accused is not found guilty or the

culprits are not traced
Where the cases end in acquittal or are discharged, and the victim has to be
rehabilitated, the court may make a recommendation for compensation.
Where the offender is not traced or identified, but the victim is identified, and
where no trial takes place, the victim or his dependents may make an
application to the State or the District Legal Services Authority for an award of
compensation.

Who  is to  provide compensation in the above case

 The State or the District Legal Services Authority shall, after due
enquiry-award adequate compensation by completing the inquiry
within two months.
 Also, it is the duty of the State or the district legal service authority to
provide an immediate first-aid facility or medical benefits to the victim
free of cost on the certificate of the police.

What to do in case of inadequate compensation

If the trial Court, at the conclusion of the hearing, is satisfied, that the
compensation awarded under section 357 is not adequate for such
rehabilitation, or where the cases end in acquittal or discharge and the victim
has to be rehabilitated, it may make a recommendation for compensation.

CENTRAL VICTIM COMPENSATION FUND SCHEME

The Central government in 2015 formulated the CVCF scheme to compensate the determined. Every
state has their own guidelines which decide the procedure.

An attempt has been made by iPleaders to bring forth the procedure by examining different scheme of
the different states. This is a standard procedure which one might follow. To know the exact step by step
procedure, please see your state’s guidelines on Victim compensation fund.

Step 1 Making an application before the District/State  Legal Service Authority

 An application can be made for temporary or final compensation. It can be filed by the Victims or
their dependents or the SHO of the area.

 The application must be submitted along with a copy of the First Information Report (FIR),
medical report, death certificate, if available, copy of judgment/ recommendation of court if the
trial is over, to the State or District Legal Services Authority

Step 2 The scrutiny stage.

District Legal Service Authority of every state first verify the content of the claim. Specific loss, injury,
rehabilitation is taken into consideration.

Step 3 Deciding the quantum of compensation to be given to victim of crime

The quantum of compensation to be granted is decided on the following factors,

  The gravity of the offence and the loss suffered by the victim.

 Medical expenditure incurred during treatment.

 Loss of livelihood as a result of injury or trauma.

 Whether the crime was a single isolated event (Example Theft) or whether it took place over an
extended period of time (Example multiple times, Rape with a woman who has been locked in a
house)

 Whether the victim became pregnant as a result of such offence.

 In the case of death, the age of deceased, his monthly income, the number of dependents, life
expectancy, future promotional/growth prospects etc.

 Or any other factor which the Legal Service Authority might deem fit.

Step 4 Method of disbursement of compensation

 The amount of compensation so awarded shall be disbursed by the respective Legal Service
Authority by depositing the same in a Nationalized Bank in the joint or single name of the
victim/dependent(s).

 Out of the amount so deposited, 75% (seventy-five percent) of the same shall be put in a fixed
deposit for a minimum period of three years.

 The remaining 25% (twenty-five percent) shall be available for utilization and initial expenses by
the victim/dependent(s), as the case may be.

 In the case of a minor, 80% of the amount of compensation so awarded, shall be deposited in
the fixed deposit account and shall be drawn only on attainment of the age of majority, but not
before three years of the deposit

HERE IS A LIST OF MINIMUM COMPENSATION TO BE PROVIDED TO VICTIM OF A CRIME. THIS LIST IS AS

PER THE NOTIFICATION BY THE CENTRAL GOVERNMENT ON CVCF SCHEME.

Any person means all humans and companies. But citizen only means Indians

Jurisdictions of courts

Jurisdictions of courts and constitutions

Pro tem compensation

Trials further
 3. Evidence issue ?
Sec.53

Direct evidence
Direct Evidence is considered as imperative evidence for deciding the matter in the issue. It
directly proves or disproves the fact.  In such evidence, a specific fact is established directly
without providing a reason to connect to the fact. One hardly needs to point out the illustration
provided as the evidence of the witness in court is direct evidence as opposed to a testimony to
a fact suggesting guilt. 
Such evidence is real, tangible, or clear evidence of a fact that requires no thinking or
consideration to prove its existence. However, relying on the evidence completely without any
reasoning to prove its existence can be considered as a drawback as well. For instance, one may
be prosecuted for perjury.
Ashok Kumar v. The State Of Madhya Pradesh
In this case, an appeal was made against the finding of the accused as guilty of the murder of his
wife. However, it was argued by the appellants the entire prosecution was based on alleging
circumstantial evidence and there was no eye witness. It was held in this case that the
circumstantial evidence must satisfy the following facts:
 The circumstances from which an inference of guilt is sought to be drawn must be firmly
established;
 The circumstance should be of definite tendency and undoubtedly point toward the guilt of the
accused;
 The circumstance should be incapable of explanation of any reasonable theory that saves the
accused from the guilt.
Thus, the appeal was successful and the accused-appellants were accused of the charge. They
were given the benefit of the doubt as the circumstantial evidence couldn’t fulfil the above-
mentioned conditions.

Constitutional Implications 
Reverse onus clauses do not stand the anvil of constitutional validity as they
are unreasonable and irrational. Late Mr. Ram Jethmalani argued in the context
of Section 24 of PMLA Act 2004 that the burden of proving that the proceeds of
crime are untainted property of the accused is unreasonable, irrational and
constitutionally invalid because this presumption doesn’t arise from some fact being
proved. In Babu v. State of Kerala, the court held that the statutory provision for a
presumption of guilt of the accused must meet the tests of reasonableness and liberty
enshrined in Articles 14 and 21 of the Constitution of India. The burden never
shifts on the accused and the reverse onus is nothing but a discredited practice of
coercing a confession by using a thumbscrew. Criminal jurisprudence in the
adversarial system has a constitutional dimension in which the reverse burden clauses
fail to satiate as delineated hereunder. 
ii. Article 14 dehumanized 
The reverse onus must stand the test of ‘reasonableness’ under Article 14. Let’s take
an example from POCSO Act 2012. In Section 30 of the Act, the culpable mental
state of the accused is presumed for the prosecution of any offence in the Act unless
rebutted beyond a reasonable doubt. This presumption raises a question. Under
these grave offences of POCSO, is the conviction reasonable and justified if the
accused fails to disprove the presumption beyond a reasonable doubt? The court
in Noor Aga case has held that the burden on the accused cannot be as high as the
prosecution (beyond reasonable doubt). This automatic shift in burden violates the
Court’s reasoning that a shift in legal burden cannot be automatic and occurs only
once the prosecution has met the threshold of establishing the actus reus and
foundational facts according to the procedure stipulated. This arbitrary assumption
reduces the cardinal principle of criminal jurisprudence to a mere shadow. There can
be a number of legitimate reasons of why a defendant is unwilling to testify. The
reverse onus clause fails to consider the realities of the situation. The failure to testify
is not always indicative of guilt. This position has been strengthened by G. Williams
who said that no policy consideration can justify this type of conviction. 
Further, the reverse clause must be for an objective and rationally connected to it.
Usually ‘public interest’ and ‘seriousness’ argument is used to justify the reverse
burden. But the differentia created on this basis is unreasonable and irrational. Alan
Norrie observes that social injury, public interest and welfare arguments are too
indeterminate as all the legislations are designed to protect such welfare. ‘Public
interest’ and ‘gravity of offence’ is often misused to disguise problems faced by the
prosecution.
The importance of rational connection was laid in Tot v. United States which requires
some inferential link between the clause and the objective sought to be achieved. This
inferential link is often missing in the reverse onus clauses. Reverse onus leads to
more convictions which in general leads to a higher number of erroneous convictions.
The severity of the offence is not the sole criterion that determines the degree of
injustice inflicted by a wrongful conviction. Even for the same type of offence,
some erroneous convictions are worse than others. The objective of public interests
stands defeated because trapping innocent individuals in the rigour of criminal law is
never in the interest of a democratic society and does not contribute into in reducing
the incidence of the very offences for which reverse burdens were introduced. 
This same reasoning found its place in County Court of Ulster County, New
York v. Allen  in which the court held that the state cannot rest its case entirely on the
presumption unless the fact proved is sufficient to convict the accused beyond a
reasonable doubt. A rational connection must be there to constitutionally protect the
rights of the accused. Martin JA also remarked in Oakes case that to convict an
accused merely on an arbitrary assumption that an essential ingredient of an offence
exists is both illusory and fanciful. In India, the rational connection or the legitimate
objective is often missing which is visible in Sher Singh v. State of Haryana. The
court justified the reversal of the burden of proof in a dowry death case on dubious
parliamentary reasoning of a mere exponential increase in dowry death cases in the
country. The court agreed with the legislative reasoning that a prudent, expedient and
imperative response to an increase in the offence rate must be the reversal of the
burden of proof. 
A perusal of all the above arguments makes it senseless for the constitutional design
of protecting accused rights if the legislature can by ‘sleight of hand’ obviate these
protections through the surreptitious use of presumptions without any objective
reasoning beneath them. It can be concluded that the reverse onus clause is a measure
responsible for limiting constitutional rights without an objective of sufficient
importance. It is not rationally and proportionately connected to the objective and
even if connected in some statutes, it heavily impairs the rights and freedom of the
accused. 
iii. Article 21 crippled 
In the Gurbaksh Sibbia v. State of Punjab, an implicit connection was earmarked
between the presumption of innocence and Article 21. In Manu Sharma v. State (NCT
of Delhi) the court expressed that Article 21 encompasses the rights of the accused
besides procedural fairness. In Sahara v. SEBI, the court held the presumption as part
of rule of law and Article 21. 
Presumption of innocence defends the accused’s right to autonomy against erroneous
convictions. The reverse clause is often deployed in serious cases and the more
serious the accusation, the more the probability of erroneous conviction. In India, the
reverse clause has been deployed in many grave offences. E.g., many provisions
in NDPS Act, 1985 have a minimum of 10 years of rigorous punishment and a
maximum of 20 years, POCA, 1988  also has a maximum punishment of 7 years. This
raises questions as an accused faces grave social stigma which includes loss of
physical liberty and ostracism. Further gauging Section 43E of UAPA is pivotal as it
allows the court to presume the commission of an offence if the fingerprints of the
accused are detected at the crime scene. The moot issue is that this provision can lead
to a myriad of subversive interpretations. It can also mean that the accused was
merely present at the crime spot and didn’t indulge in the commission. It can’t give
rise to this precise and meticulous conclusion that the accused participated in the
crime. This can seriously make an indentation in the rights of the accused besides
beget serious consequences. 

While dealing with Section 29 of the POCSO Act, 2012, the court mentioned misuse
of the reverse burden of proof cautioning against considering the prosecution version
as a gospel of truth and thereby leaving the accused in a lurch. In this context, Justice
Khanna said that nothing can undo the mischief of unmerited conviction thereby
giving an epoch-making signal. 
The reversal of proof violates the Maneka Gandhi thesis that ‘procedure establish by
law’ must not deprive a person of his life or personal liberty and has to be ‘reasonable,
right, just and fair’. Depriving any accused of their right to liberty as a result of such a
method (presuming the guilt of the offence) would be unjust and would not constitute
due process, as guaranteed by Article 21 of the Indian Constitution. When the reversal
of burden fails to satisfy the test of Articles 14 and 21, the accused is deprived of the
rights of liberty and following such a procedure would be unfair and would not
amount to due process which is concomitant of the guarantee under Article 21 of the
constitution. The thesis can be understood aptly in Sohan v. State of Haryana in
which the SC lamented that had the Session Judge reminded himself of the
presumption of innocence and the beyond reasonable doubt standard, the whole
direction of the approach would have been different and the accused would not have
suffered from the perverse appreciation of the evidence. 
Conclusion
Reverse burdens discriminate unequivocally between those
accused of reverse onus crimes and those accused of non-reverse
onus crimes solely based on the ostensible goal of public
welfare, denying the former the constitutional guarantees of
equality before the law and equal protection under the law. It
calls for testing the reverse onus clauses on the anvil of justness,
fairness and reasonableness. The court has to perform the fine
balancing task of looking at whether the social interest sought to
be protected is rationally connected to the step of altering the
burden of proof. 
4. CRPC issue?