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Govt stand on marital rape: An indignity to women

The Centre on Tuesday told the Delhi High Court what “may appear to be marital rape” to a wife “may not appear so to others” and marital rape should not be criminalised as it “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”.

Written by Abantika Ghosh | New Delhi |
Updated: August 31, 2017 12:52:23 pm
marital rape, india rape law, marital rape criminalisation, criminalise marital rape, That sexual violence within or outside marriage is a gross violation of one’s dignity should not ordinarily need a judicial stamp. (Source: Representational image)

The track record was nothing extraordinary – after all the Attorney General did argue in court that citizens have no absolute right over their body parts – but the NDA government has failed the touchstone of privacy within less than a week of the Supreme Court pronouncing it to be a fundamental right.

The Centre on Tuesday told the Delhi High Court what “may appear to be marital rape” to a wife “may not appear so to others” and marital rape should not be criminalised as it “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”. In doing so it took away from the wife, merely by dint of her being married, her agency, her right over her own body and most importantly, her dignity. So crucial is dignity in last week’s Supreme Court judgement making Right to Privacy a fundamental right that the word appears no less than 204 times in the 547 page judgement. In essence dignity as laid down in Article 21 of the Indian Constitution is the backbone of right to privacy, as the nine judge Bench saw it.

The Preamble to the Constitution postulates that the people of India have resolved to constitute India into a Republic which (among other things) is Sovereign and Democratic and to secure to all its citizens: “JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity of the Nation;…”

READ | Marital rape a crime in many countries, an exception in many more

Using that as the benchmark, the SC judgment of August 24 says: “The right to privacy is an element of human dignity. The sanctity of privacy lies in its functional relationship with dignity. Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion. Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life. In doing so privacy recognises that living a life of dignity is essential for a human being to fulfil the liberties and freedoms which are the cornerstone of the Constitution.”

That sexual violence within or outside marriage is a gross violation of one’s dignity should not ordinarily need a judicial stamp. But at a time when the government is determined to deprive one half of its citizens a fundamental right and a constitutional guarantee, it may not be out of place to take recourse to the courts. While dealing with a case involving the rape of an eight year old child, a three-judge Bench of The Supreme Court held in 2000: “Sexual violence apart from being… dehumanising… is an unlawful intrusion of the right to privacy and sanctity… It… offends her… dignity.” That judgement is quoted in the Right to Privacy judgement.

To make the argument that such intrusion when it happens within the confines of one’s own bedroom, where one is expected to be the most secure, should be condoned in the interest of preserving an inherently unequal social contract as a marriage – Union ministers give examples of “nayi naveli dulhan (newly married bride)” to make a point about adjustment – is facile, patriarchal and in the light of the SC judgement, patently unconstitutional. What’s more the sheer casualness with which rape has been addressed in the government’s response – it introduces unique terms like “non-rape” – shows that while there are no qualms about making political capital out of incidents like the 2012 Delhi gangrape, there is little understanding or sensitivity towards the crime. This despite the fact that a slew of reports including that of Justice J S Verma Committee post the Delhi incident and high powered committee formed by the Women and Child Development ministry on the status of Indian women having favoured criminalisation of marital rape.

The Right to Privacy judgment also says: “To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty is intended to achieve.”

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