Article by Vaibhavi Patel,
Section 375 of the Indian Penal Code (IPC), which categorizes rape as an offense in the country, exempts rape by a man of his own wife from the offense. Even the Supreme Court of India affirmed that marital rape is not a criminal act if the victim is above the age of 18 years. The non-recognition of marital rape as a wrong renders the women of India devoid of any mechanism by which they can obtain redress for an otherwise internationally recognized human rights violation. The lack of recognition and redress could even have adverse physical or psychological implications.
However, by supporting the criminalization of marital rape, members of the public have adopted an opinion contrary to the legal precedent in India. A bill recently introduced in the Lok Sabha that would criminalize marital rape suggests that the contrary view is growing prominent. As marital rape has a notable presence in India, it becomes important to understand whether the country’s non-recognition of marital rape as a crime violates international human rights standards.
Following an analysis of India’s infringement of the human rights norms embodied in various international instruments, this blog concludes that the country, by omitting such norms in the IPC, defies the rights of women and shall thus bear the responsibility of applying sanctions to the wrongdoer, providing reparation to the victim, changing the penal laws to make them consistent with international human rights laws, and effectively enforcing measures to tackle gender-based violence.
Convention on the Elimination of Discrimination Against Women (CEDAW)
An analysis of the provisions of CEDAW suggests that India is in violation of international human rights principles prohibiting discrimination against women and rape. According to Article 1 of CEDAW, ‘Discrimination Against Women’ includes “any distinction...made on the basis of sex which has the effect of impairing...the exercise by women, irrespective of their marital status...of human rights and fundamental freedoms in the...social, cultural, civil or any other field.”
Deliberate exclusion of marital rape in IPC fits within the CEDAW definition of being discriminatory in nature, since rape committed by the spouse of the victim upon her body has been justified merely on the basis of the victim’s marital status, thus denying her the protection guaranteed to unmarried women. Marital rape should therefore be punished in the same manner as rape with an unmarried woman is.
General Recommendation 19 (GR-19) of CEDAW deems acts that inflict physical, mental or sexual harm upon women as discrimination against women. GR-19 also defines ‘human rights and fundamental freedoms’ as including “the right to highest standard attainable of physical and mental health”. The GR-19 further notes that the effect of violence on physical and mental integrity deprives women of the equal exercise of human rights and fundamental freedoms. The direct relationship between violence and liberty elucidates that rape, is harmful to the physical and mental health of a woman, whether the perpetrator is their spouse or not, and therefore violates human rights and fundamental freedoms of a woman.
General Recommendation 35 (GR-35) of CEDAW which updated GR-19 added, inter alia, that marital rape is rape on the basis of a lack of freely given consent and takes account of coercive measures. GR-35’s recognition of the elements of marital rape highlights the infringing effect of its non-recognition upon the fundamental freedoms of women.
India has not signed the Optional Protocol to CEDAW, which establishes a committee responsible for monitoring State Parties’ compliance with the Convention. By not recognizing the committee as an institution, India has barred the committee from taking any action against India even if acts which violate CEDAW occur within its jurisdiction.
Although individuals cannot approach the committee with its grievances, India continues to have an obligation to protect and enhance the human rights of women notwithstanding their marital status.
Under Article 2(f) of CEDAW, India is obligated to take all appropriate measures, including legislation, and to modify or abolish existing laws, customs and practices that discriminate against women. GR-19 also acknowledges that within family relations, women of all ages are subjected to violence that is perpetuated by tradition and social attitudes, including rape. The persistent, predominantly male, convention of disbelief that consent is necessary post-marriage maintains the occurrence of marital rape. New legislation or amendments to the existing IPC are necessary and sufficient in order to reform traditional conceptions of consent.
Other International Human Rights instruments
India’s non-recognition of marital rape as a crime violates international human rights instruments, namely the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR) in addition to CEDAW to which it is a party.
The IPC definition of rape discriminates against married women, and thus lies in contravention to Article 26 of the ICCPR. Article 26 of ICCPR requires that domestic law guarantee equal and effective protection against discrimination on any grounds including any other status of a person, besides those already mentioned in the provision such as race or sex. As India is a party to the Covenant, it is not permitted to derogate from any fundamental right recognized in the Covenant, according to its Article 5.
Non-recognition of equal protection of married women in IPC amounts to a failure to legally guarantee equal dignity to all women. Article 1 of the UDHR asserts that all human beings are free and equal in dignity and rights. This affirmation of equal dignity and rights makes no distinction between humans on the basis of their status, as all human beings and accordingly even married women have rights equal to those of unmarried women. Article 28 of the UDHR entitles individuals to a social and international order in which the rights and freedoms set forth in the declaration can be fully recognized, obligating India to foster a social environment favourable for married women. The passage of new legislation or legislative reform criminalizing marital rape is the most tangible and direct means by which India can fulfill its UDHR obligations.
The Beijing Declaration and Platform for Action
India’s laws contradict not only international human rights instruments but also principles recognized in the Fourth World Conference on Women held at Beijing. The Beijing Declaration encourages countries worldwide to ensure universal ratification and complete implementation of CEDAW, to the extent that reservations to CEDAW be limited and the Optional Protocol be ratified. In this declaration, countries were also urged to remove discriminatory legislative provisions including, inter alia, penal codes, as an urgent priority.
Such a declaration is especially relevant for countries like India, where the state has taken no legislative or legal measures to combat the rising frequency of rape cases. The state could change its discriminatory penal code and ratify the Optional Protocol, to not only check the compliance of CEDAW but also provide an avenue for redress to impacted women. Although, India has successfully taken several measures to curb discrimination against women, it is yet to take concrete measures to admonish the practice of marital rape, a phenomenon that has been recognized internationally as a crime and that drastically impedes upon the human rights of Indian women.
Ramifications of the Violations
An analysis of GR-35 shows that owing to its discriminatory provision for rape, India shall have to face ramifications for its state and non-state actors.
GR-35 provides for responsibility for acts and omissions of state as well as non-state actors arising from the violation of Article 2 of CEDAW, which mentions the undertaking of State Parties to CEDAW to pursue means to eliminate discrimination against women. As for responsibility of States, if a state fails to produce or correct laws in order to ensure that they are not discriminatory against women, or if its organs or agents commit acts or omissions which are discriminatory against women, it is obliged to apply appropriate sanctions as well as provide reparation to the affected party.
With respect to non-state actors, GR-35 provides that States have a due diligence responsibility for the actions of non-state actors. Accordingly, if States fail to eliminate discrimination engendered by any person by failing to take preventive measures and to fulfil the duty to investigate, prosecute, punish, and provide reparation for violence against women, they will be held responsible. The GR-35 further clarifies that under this obligation, State parties are required to adopt and implement diverse measures to tackle gender-based violence against women, and also that these measures have to be effectively present in practice and be diligently enforced by all State agents. A failure to fulfill G-35 obligations would amount to a human rights violation.
The principle of due-diligence in ensuring the elimination of violence against women has also been backed by the Declaration on the Elimination of Violence Against Women under its Article 4(c), which provides that States should pursue by all appropriate means a policy of eliminating violence against women and should exercise due-diligence to prevent, investigate and punish acts of violence against women whether committed by state or private actors. This, the declaration pursues, should be in accordance with national legislation. However, it also provides under Article 4(d) that States should develop penal sanctions in domestic legislation to punish the wrongs caused to women. Therefore, it is a recognized principle that violation against women should be curbed by any efficient manner, including domestic legislative reform.
Conclusion
The 59th session of the Commission of Human Rights in 2003 affirmed that violence against women constituted a violation of the human rights and fundamental freedoms of women as it impaired their enjoyment of such rights and freedoms.
India indisputably continues to violate international human rights norms and laws by ignoring the reality of marital rape within its jurisdiction and instead conforming its laws to traditional and unethical standards. Regardless of their conservative beliefs, every institution in the Indian society must respect the basic human rights norm of treating each other with dignity. The state should condemn any diversion from human rights principles, so as to ensure the fundamental well-being and development of its women.
Author
Vaibhavi Patel is currently a third year student pursuing the course of B.A. LL.B. (Hons.) in Gujarat National Law University. She has a keen interest in International Criminal Law, Indian Criminal Law, as well as International Humanitarian Law. She also enjoys reading on topics related to the interface of law and politics.