Next steps after the 377 judgment

Next steps after the 377 judgment

Article:

1. Pradeep Chhibber, a Professor of Political Science has evaluated the Supreme Court verdict on Section 377 and its consequences.

Important Analysis:

2. A five judge constitution bench of Supreme Court decriminalized homosexuality and declared Section 377 of IPC as unconstitutional.
3. However, the provisions of Section 377 will continue to govern, non-consensual or unnatural sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality.
4. According to Author, the judgement will have major unintended negative impact on women.

• In a research conducted at Police station across Bihar, UP and Haryana, female has invoked most cases of section 377 in the context of section 498A.
• Analysis conducted at police station across Bihar, UP and Haryana found that for every hundred Section 377 cases, more than half are filed by women in the context of Section 498A.

Note

Section 498A of IPC: Deals with domestic violence and cruelty towards women by the husband or his family members and the person who practices cruelty, or demands the dowry would be accountable to be prosecuted criminally.

• In a recent Judgement Supreme Court passed an order to scrap family welfare committee which was established to look into the crimes related to IPC section 498A in 2017, making section more stringent.

5. In the Indian criminal justice system, Crime committed under Section 498A (e.g Dowry) considered as a minor crime and Section 498A has the lowest conviction rate of any law in India.
6. This is where Section 377 play an important role:

• Women who register spousal abuse, especially in the form of Section 498A, also encourage police officers to register an additional case of Section 377 to highlight Non-Consensual act against their husbands to elevate the heinousness of the crime to imply that abuse is not simply “cruelty” but also one of sexual abuse.
• The legal problem is that India, as in large parts of West Asia and Africa, does not recognize marital rape as a crime.
• In a legal context in which marital rape is not recognized, Section 377 emerges as a tool for married women to highlight the “unnatural” abuse they face.

7. However, SC has held Section 377 is redundant when applied to women because:

• Section 375 (rape) already criminalizes non-consensual acts
• Criminal Law (Amendment) Act, 2013 broadened the scope of Section 375 to include non-penile-vaginal penetration.
• But, there is an exemption in Section 375 says, “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
• And, this is why Police used to apply Section 377 to many dowry harassment cases that involve sexual violence.

8. SC judgement on Sec 377 is still unclear whether abused married women will be able to use the law in quite the same way as they did before.
9. A far more effective and progressive strategy would be for the state to now criminalize marital rape. This could be done by passing a new law or merely removing the exemption in Section 375.