By Vennela Krishna:
A crime is understood as an act against the society. What is a criminal offence is defined differently; legally, it is an offence specified under the Penal Code; sociologically, it is an act which a society regards as sufficiently menacing to its fundamental interests; ethically, it is a moral wrong. However, such an understanding of crime in what is essentially a duty-oriented culture has deep implications both on jurisprudence, and on individual rights of life and personal liberty.
Understanding crime as an act against the society, as an act that shakes the society’s conscience and its sense of security, necessarily gives the definition a connotation of popular perception. This, in turn, signifies two inevitable results: what society regards as fundamentally affecting its solidarity will be a crime, and what is popularly seen as acceptable becomes a legitimate and non-criminal act.
Allow me to illustrate my point with two controversial and widely-debated laws in India today: Section 377 of the IPC, which has recently gained popular recognition, and Section 375 of the same Code, a lesser-known but nevertheless an equally widely criticised law.
Section 377 of the IPC defines unnatural sexual intercourse and criminalises any type of sex other than peno-vaginal penetration. This means that not only homosexual sex is punishable with life imprisonment, but so are oral and anal types of sex, and any other form that consenting adults might undertake that does not include peno-vaginal penetration, the form that is considered ‘natural’. This is a law that seeks to define what is proper within the four-walls of the bedroom, one that is seeking to punish consensual activity of an individual with life imprisonment.
On the other side of the spectrum lies Section 375. The Section defines rape, and even after the 2013’s Criminal Law Amendment, the exception to this section reads marital rape. This means that when a husband has forced sexual intercourse with his wife, it will not be rape. Hence, any sexual intercourse that happens inside marriage, with consent or without it, is not rape. Interestingly, consensual sexual intercourse between two youngsters under the age of eighteen will constitute crime.
It is necessary to analyse where consent fits in the present scheme of things. With a glance at the present Penal provisions, it is obvious that the present system places its faith on popular perception of crime rather than on consent. What society considers wrong is criminal, irrespective of whether individual rights are being violated due to such a criminalization.
When the society considers homosexual or oral sex as not carnal, with an idea of peno-vaginal penetration as natural, anything that does not fit in its definition of natural will begin to constitute a crime irrespective of individual choice. In a society which has evolved to perceive a man and woman’s sexual intercourse to be the order of nature, any view that contradicts accepted norms will be seen as unnatural against a popularly decided naturalness.
At the same time, when a patriarchal society considers a husband’s rape of his wife as normal and not sufficient to shake its moral conscience, it remains an exception to a heinous crime. A popular conception of a woman’s duty to submission to sexual intercourse with her husband shatters concepts of consent and rights of personal liberty, and legitimizes the crime. Keeping in mind that although the legal age for a woman to marry in India is 18, and that child marriages are not void, observe this contradiction – When a boyfriend has consensual sexual intercourse with his 17 year old girlfriend, it is rape. However, if he is her husband and forces himself upon her, it is legitimate sexual intercourse.
Homosexual intercourse, although consensual, is a crime. A woman being raped by her husband every night does not have a remedy under criminal law. Two persons having oral sex with mutual consent can be punished with a life imprisonment.
As a young person who has recently started studying law, the present scenario for me is deeply disconcerting. What we believe are the foundations of our nation, the fundamental rights to life and liberty, are being violated by outdated laws that have still not changed to fit the society’s present needs.
To understand the need for a change in our jurisprudential foundations, we must first remember that our constitution was framed with giving supreme status to the fundamental rights. The right to life and personal liberty in Article 21 has been held to be the most important to ensure a dignified life. Fundamental duties were only added to the constitution by an amendment, and even then they are non-enforceable.
It thus becomes clear that we follow a legal system that centres on individual rights and their protection and enforcement. This is in stark contrast to India’s hugely duty-oriented culture, with concepts like Dharma and Karma which have influenced people’s lives since time immemorial. Our mythologies glorify people like Mahabali, Karna and Rama who became heroes because they fulfilled their Dharmas. They did their duty irrespective of whether they liked it or not, notwithstanding the fact that their sacrifices altered the courses of their lives.
This approach is no longer in conformity with the exigencies of our times. We have now evolved to believe in an individualistic world view, with the most importance being placed on the guarantee of fundamental rights to every person. We now believe in the rights of an individual to build her/his own life, rather than letting social circumstances ascribed by birth to shape a person’s destiny.
India’s culture is slowly evolving to imitate western styles of living (I shall refrain from passing a value judgment of this process). For better or for worse, India’s culture has undergone a significant transformation in recent times and has inclined to have a western flavour. This process of cultural alteration must be balanced with a corresponding revolution in the country’s jurisprudential bases, otherwise the previously duty-oriented culture’s influence on the rights-based jurisprudence will only result in a standstill, and subsequent conflict, in the otherwise evolving society.
In a country that boasts of guarantees to fundamental rights of life and personal liberties to all its citizens, such laws are but regressive. They reinforce the previous concepts that the society has grown to shun. They force an otherwise progressive society into its previous patriarchy and bigotry, and foster a system where personal rights of life are not recognized. They limit the society’s growth towards a rights-based culture to remain in its previously duty-oriented approaches.
There is thus an urgent need to evolve a rights-based jurisprudence independent of the largely duty-based culture.
To modify an Ellen Degeneres quote:
I am not an activist, nor do I look for controversy. I am not a political person, but I am a person with compassion. I believe in recognition of rights to all. I believe in fighting for the enforcement of such rights, because they are fundamental to the very existence of an individual in a society.
The fight against such laws is a fight for the recognition of human rights to life and personal liberty. Recognition of the fact that every person has a right to build their own future, irrespective of what social circumstances were ascribed upon them by destiny; it is an approach that lets an individual take charge of their life instead of letting a society determine what should be proper conduct.
Jurisprudence, in such a society, will have to thus focus on violation of rights instead of what shakes its acquired conscience.