Centre’s stalling before the Delhi High Court is not surprising (on marital rape)

Picture Credit – Zee News India

Last week, Solicitor General Tushar Mehta representing the central government told the Delhi High Court that the Centre needed reasonable time to formulate its stand on the issue of marital rape. Mehta submitted, that an ‘amendment to criminal law is a continuous process’ and suggestions have been invited from various stakeholders including Chief Ministers, the Chief Justice of India, Judges, Judicial Academies, Bar Councils, Law Schools etc. on the issue. These submissions were made during the hearing concerning criminalisation of marital rape ongoing before the Court.

These submissions are not surprising and in fact, once again highlight the ruling government’s reluctance and disinterest in criminalising marital rape. In 2017, while responding to a question by DMK’s Member of Parliament Kanimozhi on whether the government will bring a bill amending the Indian Penal Code to remove the exception of marital rape? Minister of State for Home Affairs Haribhai Chaudhary responded that there was no such intention. He justified the decision by arguing that marriage is considered a sacrament in India and hence, marital rape as understood internationally cannot be applied here. Similarly, in 2018 a private Bill introduced by Dr. Shashi Tharoor (titled Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018) seeking criminalisation of marital rape, lapsed as it lacked any government support.

Even before it came to power, the BJP’s track record with women rights was not very promising, going all the way back to the debate over the Hindu Code Bill. Shortly after independence, Dr. Ambedkar (supported by Pt. Nehru) piloted ‘The Hindu Code Bill’ before the provisional parliament. The Bill sought to liberalise Hindu personal law by elevating the rights and status of women, amongst other things. It proposed inter alia provisions that awarded an equal share to the widow and daughter, allowed a woman to dispose her estate with full autonomy etc.  This Bill was heavily opposed by traditionalists who cited Hindu texts to justify discrimination against women. The Rashtriya Swayamsevak Sangh (BJP’s ideologue) joined this opposition and organised several protests wherein effigies of Ambedkar and Nehru were burnt.  The government’s present dilatory approach is at least a soft measure.

Supporters of the BJP cite the legislation criminalising Triple Talaq, to showcase the government’s pro women attitude. However, the said legislation is termed by many as a political move, rather than a genuine effort at criminalising discriminatory laws. In all fairness, the previous UPA government also shied away from criminalising marital rape in its ten-year tenure. However, Congress leader Rahul Gandhi now hints towards favouring the criminalisation.

Thankfully, the Delhi High Court has caught on to the Centre’s dilatory tactics. The Bench of Chief Justice C. Hari Shankar and Justice Shakder strongly responded to Mehta stating, “The point is if you are going to say that we should wait till all states and all commissions come and you revamp the entire IPC, CrPC and Evidence Act before we decide this, that is not possible, that will take you 10 years to do that exercise.” The Court’s tight vigil might just force the Centre to contest the matter on merits rather than pushing it for another day.

The call to criminalise marital rape is supported by several High Courts, the JS Verma Committee, activists and other right-minded individuals. Forcing a woman to have intercourse against her wishes is a criminal act and shielding the preparator using the institution of marriage is wrong and immoral. I am reminded of the words of Pt. Nehru during the Hindu Code Bill debate, which is apropos here. Nehru remarked, “I do not seem to remember men being reminded in the same manner of Ramachandra and Satyavan, and urged to behave like them. It is only women who have to behave like Sita and Savitri; the men may behave as they like.”

Views are personal.

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