Decision on Sec 377 could affect other sexual offences in IPC: SC

TIMES OF INDIA

NEW DELHI: The Supreme Court on Wednesday said its final decision on the correctness of the Delhi High Court judgment — which decriminalized Section 377 of Indian Penal Code covering a sexual act in private between consenting adults — could have far reaching impact on several sexual offences listed in the penal laws.

A bench of Justices G S Singhvi and S J Mukhopadhaya requested the counsel for parties to keep in mind the evolving social ethos as the key words in the HC judgment — “consenting adults committing a sexual act in private” – could have a bearing on several other sexual offences enumerated in the IPC.

“Though the focus of our judgment would remain on Section 377, but keep in mind that it could have bearing on provisions relating to other sexual offences. Obscenity could be one such provision,” the bench told senior advocate Amarendra Saran, who was arguing against the HC verdict on behalf of Delhi Commission for Protection of Child Rights (DCPCR).

The court was possibly hinting at offences like adultery and obscenity in public, mostly misused by police to harass couples in parks.

Section 497 defines adultery. According to it – “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

In this case, the consent of the woman is immaterial and the consenting sexual act still would constitute an offence if the consent of her husband was not taken.

Saran said NGOs had challenged the legality of Section 377 before the HC on the ground that it targeted homosexuals as a class and hence violated the LGBT (lesbian, gay, bisexual, transgender) group’s right to equality guaranteed under Article 14, right to privacy under Article 21 and the constitutional guarantee under Article 15 prohibiting discrimination on the basis of sexual orientation of such persons.

He argued that right to privacy did not confer right on consenting adults to commit an act in private which was illegal. “In other words, right to privacy does not confer immunity to crimes committed by consenting adults in private. Hence, the reasoning of the HC that Section 377 is violative of right to privacy is clearly erroneous,” Saran said.

He said Section 377 did not suffer from class bias. “It applies uniformly to any man or woman if such person indulged in carnal intercourse which is against the order of nature,” he said and cited a 1990 Supreme Court judgment to back his argument that all “non penile-vaginal” intercourse would fall within the meaning of “carnal intercourse against the order of nature”, which has been classified as an offence under Section 377.

The DCPCR counsel said “there was a vast cultural difference in the Indian society and other societies of the world” and faulted the Delhi HC judgment for basing its reasoning on foreign court rulings.

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Ban finger test in rape cases

FROM THE HINDU

Making a woman’s sexual experience the basis for judging her moral character can have a disastrous impact not only on a rape trial, but more importantly, on the victim’s well-being. Stereotypes about sex and morality are continually evoked in Indian courts at all levels. In 2009, the Supreme Court stated the victim “appears to be a lady used to sexual intercourse and a dissolute lady.” Acquitting the accused for lack of medical evidence, the Patna High Court said, “Though the girl was aged about 20 to 23 years and was unmarried, she was found to be “habituated to intercourse.” This makes her to be of doubtful character.”

The observations are from a report titled ‘Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors’ by the organisation Human Rights Watch (HRW).

Medical evidence

Released on Monday, the report “discusses the problems posed by one of the most archaic forensic procedures still in use: the finger test — a practice where the examining doctor notes the presence or absence of the hymen and the size and so-called laxity of the vagina of the rape survivor.” It’s a procedure that mimics the act of rape, further aggravating the victim’s trauma. Terming it “degrading,” “inhuman” and “unscientific,” the study calls for a ban on the finger test as a method for collecting medical evidence in rape cases. “[It] is supposed to assess whether girls and women are ‘virgins’ or ‘habituated to sexual intercourse.’ Yet it does none of this,” the report states. At a press conference here on Monday, Aruna Kashyap, women’s rights researcher at HRW and author of the report said, “The test has potential for re-traumatising the victim. We decided to do a report on the finger test because of certain regressive developments in the country recently.”

“The Maharashtra and Delhi governments continue to recommend the finger test in their forensic examination templates. For example, in June 2010, the Maharashtra government introduced a template that includes a series of questions about the hymen, including the number of fingers that can be admitted into the hymenal orifice,” she said.

The apex court has described the test as “hypothetical and opinionative.” Secondly, “it has clearly and repeatedly held that showing that a survivor is ‘habituated to sexual intercourse’ is immaterial to the issue of consent in a rape trial.”

Despite these rulings, opinions on the victim’s sexual experience are routinely sought. They play a role in shaping the attitude of the police, medical professionals and courts. Ms. Kashyap said the root of misinformation lay in outdated textbooks on medical jurisprudence. “The Supreme Court’s decision on the test should be included in the textbooks,” she said.

Absence of definition

“The absence of a comprehensive definition of sexual violence in Indian law has also hindered the prosecution of various sexual offences, resulting in acquittals or inadequate punishments for convicted criminals,” it observes. Pointing to the rigidity of the criminal justice system, noted women rights lawyer Flavia Agnes pointed to the functioning of a deeper ideology. “Non-biased legal opinion is always biased against the woman. As if medical status has a moral character. Virginity becomes a criterion for truthfulness or character? Is it the same with, say, anaemia?” she asked. World Health Organisation (WHO) guidelines stipulate minimally invasive procedures and “non-invasive” ones for prepubescent girls and boys. The report stresses the need to train and sensitise medical professionals in collecting and documenting forensic evidence in sexual offences. This report is based on HRW’s research between April 10 and August 10, 2010, in Delhi and Mumbai. The observations rest on 44 interviews with activists, rape survivors and their parents, prosecutors, other lawyers, judges, doctors and forensic experts in Mumbai and Delhi.