• RAPE

• Rape within marriage and outside marriage- marital rape

and ‘spousal exception’ - sections 375-376, Ss. 376A-D
• UNNATURAL OFFENCES- Section 377
• MINOR SEXUAL OFFENCES
• OBSCENITY (Sections 292-294)
• '375. A man is said to commit "rape" if he-—

• a. penetrates his penis, to any extent, into the vagina, mouth,

urethra or anus of a woman or makes her to do so with him or any
other person; or

• b. inserts, to any extent, any object or a part of the body, not

being the penis, into the vagina, the urethra or anus of a woman or
makes her to do so with him or any other person; or

• c. manipulates any part of the body of a woman so as to cause

penetration into the vagina, urethra, anus or any of body of such
woman or makes her to do so with him or any other person; or

• d. applies his mouth to the vagina, anus, urethra of a woman or

makes her to do so with him or any other person, under the
circumstances falling under any of the following seven descriptions:—
• under the circumstances falling under any of the following seven
descriptions:—
• First.—Against her will.
• Secondly.—Without her consent.
• Thirdly.—With her consent, when her consent has been obtained by
putting her or any person in whom she is interested, in fear of death
or of hurt.
• Fourthly.—With her consent, when the man knows that he is not her
husband and that her consent is given because she believes that he is
another man to whom she is or believes herself to be lawfully
married.
• Fifthly.—With her consent when, at the time of giving such consent, by
reason of unsoundness of mind or intoxication or the administration by
him personally or through another of any stupefying or unwholesome
Substance, she is unable to understand the nature and consequences
of that to which she gives consent.
• Sixthly.—With or without her consent, when she is under eighteen
years of age.
• Seventhly.—When she is unable to communicate consent.
• Explanation I.—For the purposes of this section, "vagina" shall also
include labia majora.

• Explanation 2.—Consent means an unequivocal voluntary

agreement when the woman by words, gestures or any form of
verbal or non-verbal communication, communicates willingness to
participate in the specific sexual act:

• Provided that a woman who does not physically resist to the act of
penetration shall not by the reason only of that fact, be regarded as
consenting to the sexual activity.

• Exception I.—A medical procedure or intervention shall not constitute

rape.

• Exception 2.—Sexual intercourse or sexual acts by a man with his

own wife, the wife not being under fifteen years of age, is not rape.'.
• 375. Rape.—A man is said to commit “rape” who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling under
any of the six following descriptions:—
• (First) — Against her will.
• (Secondly) —Without her consent.
• (Thirdly) — With her consent, when her consent has been obtained by putting
her or any person in whom she is interested in fear of death or of hurt.
• (Fourthly) —With her consent, when the man knows that he is not her husband,
and that her consent is given because she believes that he is another man to
whom she is or believes herself to be lawfully married.
• (Fifthly) — With her consent, when, at the time of giving such consent, by reason
of unsoundness of mind or intoxication or the administration by him personally or
through another of any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she gives consent.
• (Sixthly) — With or without her consent, when she is under sixteen years of age.
Explanation.—Penetration is sufficient to constitute the sexual intercourse
necessary to the offence of rape.
• (Exception) —Sexual intercourse by a man with his own wife, the wife not being
under fifteen years of age, is not rape.
• Criminal Amendment Act 2013 made important changes.
• S. 375 (Rape): Amended:-
• (a) Penetration of Penis (any extent) to: Vagina, mouth, urethra
or anus. OR makes her to do so with him or ANY other “Person”
• (b) inserts (any extent); any object/part of body (other than
penis) into: Vagina, Urethra or anus, makes her do so with him
or ‘any other’ “Person”
• (c) Manipulate any part of body of ‘woman’ to cause
penetration into Vagina, Urethra, Anus
• (d) applies his mouth to Vagina, Anus, Urethra or makes her do
so with him or any other person.
• Sexual intercourse (a) to (d) of Section 375.
• Purpose: New category of sexual offences which do NOT
amount to rape, because consent of victim is given in such cases
But under compelling circumstances.
• Persons under supervisory position & power take undue
advantage of their authority & position & obtain ‘consent’ by
inducing or seducing her for sexual intercourse. ‘Custodial
rape’.
• Why can’t this be covered u/s 375 itself as even if give ‘consent’;
there is NO will.
• OR even if doubts about ‘will’ then ‘consent’ means unequivocal
voluntary agreement.
• Under any of 7 descriptions:-
• 1. Against her will
• 2. ‘w/o her consent
• 3. Consent out of fear (her own death/hurt or in whom she is
interested)
• 4. She believes to be married
• 5. Consent because of unsoundness/intoxication or administration
through other substance
• 6. with/ W/o consent < 18 years
• 7. Unable to communicate consent
• Explanations, Proviso (Imp): no resistance = no consent,
• Exceptions (marital rape not till wife < 15 years)
• Rape= morally & physically/emotional/mental. It is an assault
on body, mind, privacy of victim.
• Rape= Latin term ‘Rapio’ = ‘to seize’
• Burden of proof regarding innocence = on Accused
• Prohibition on disclosure of identity of victim. (Om Prakash v
State of UP)
• In camera trial.
• A woman can never commit rape BUT can be held liable for
‘abetment’
• Clause 1: Rape must be either against will or against consent
• Will= faculty of reasoning power of mind that determines
whether to do an act or not.
• Every ‘act against will’ & ‘w/o consent’. But act against w/o
consent is NOT against will.
• ‘Against her will’= intercourse was done by a man despite
her resistance & opposition.
• w/o consent= comprehend an act of reason accompanied by
deliberation.
• E.G. girl sleeping so not ‘against will’ but w/o consent.
• Consent even if given should be ‘free’ & ‘voluntary’
• Gurmit Singh Case:
• Girl (< 16 years) coming from school, accused abducted her & raped
her one by one. Threatened her to kill & she didn’t resist anyone. Next
morning left her to original place. Lower acquitted disbelieving the
victim.
• SC laid few points:-
• 1. Delay in FIR not material if properly explained.
• 2. Testimony of victim is vital & unless compelling reasons
necessitate, corroboration not required.
• 3. Trial in camera & lady judge required.
• 4. Stop judging loose moral character.
• 5. Victim not to be harassed/humiliated in cross examination.
• Clause 2: ‘W/O Consent’
• Consent = intelligent, positive concurrence of ‘will’ of the
woman.
• Where ‘consent’ a basis: because man best judge of his/her
own interest & will not consent to what he/she considers
injurious.
• Consent should be FREE
• May be express or implied: Depends on facts.
• CASE: RAO HARNARAYAN SINGH V. STATE AIR 1958 P & H 123
• X, Tenant of the accused forced his wife to satisfy lust of the accused
& his guests on eve of entertainment party. She protested but finally
under pressure of her husband she surrendered. 3 accused raped her
during night & she died almost immediately. Her shrieks were heard
all over.
• H.C. laid down difference b/w ‘Consent’ & ‘Submission’:-
• 1. Mere act of helpless resignation due to irresistible compulsion;
passive giving in is not equal to Consent.
• 2. Consent requires voluntary participation after having exercised
freely a choice b/w/ resistance & assent.
• 3. Consent in order to relieve an act of a criminal character (e.g.
rape) must be an act of reason; accompanied with deliberation
after weighing both good & evil & with power to withdraw the
assent according to one’s will & pressure.
• Deelip Singh Case:- Accused forcibly raped the victim & then to
console her that he would marry her. Victim then had various
sexual relationships with him. She got pregnant & informed
family. Her family tried to tie marriage knot but it didn’t work.
HC said Rape.
• But S.C. said such promise to marry would be punishable
only if it is established that from very inception man never
really intended to marry. If not; then he could be liable for
breach of promise.
• False promise of remarriage will not IPSO FACTO make a
person liable for rape if woman > 18 years & impliedly
consented.
• Clause 3: Consent under fear of death or hurt is not Consent.
• Idea= Consent should be free & voluntary.
• Scope expanded by words ‘or any person she is interested in.’
• E.G. Police has sex with a girl & threatens to beat her
husband up & put in police remand. ‘Actual use of force’:
NOT Important.
• Mathura Rape Case: SC said consent as no marks of
resistance & she had opportunity to say NO. She was not
subjected to threat or fear.
• Clause 4:Consent given thinking that person is husband not
consent. The man knows he is NOT husband & pretends
himself to be husband.
• E.G. On Suhagraat someone else enters.
• Clause 5: Consent of unsound mind is not consent.
• Consent is NOT free= Impairment of intelligence.
• Clause 6: Consent < (less than)18 years is not valid. If
birthdate not clear; depend on tests & facts. Even if girl
herself invited but if < 18 years; then it is rape.
• But if belief that girl is over 18 years = ??
• Argue defense of Mistake of fact.
• 1. Whoever, except in the cases provided for in sub-section (2),
commits rape, shall be punished with rigorous imprisonment of
either description for a term which shall not be less than seven
years, but which may extend to imprisonment for life, and shall
also be liable to fine.
• 2. Whoever—
• a. being a police officer, commits rape—
• i. within the limits of the police station to which such police
officer is appointed; or
• ii. in the premises of any station house; or
• iii. on a woman in such police officer's custody or in the custody
of a police officer subordinate to such police officer; or
• b. being a public servant, commits rape on a woman in such
public servant's custody or in the custody of a public servant
subordinate to such public servant; or
• c. being a member of the armed forces deployed in an area
by the Central or a State Government commits rape in such
area; or
• d. being on the management or on the staff of a jail, remand
home or other place of custody established by or under any law
for the time being in force or of a women's or children's
institution, commits rape on any inmate of such jail, remand
home, place or institution; or
• e. being on the management or on the staff of a hospital, commits
rape on a woman in that hospital; or
• f. being a relative, guardian or teacher of, or a person in a
position of trust or authority towards the woman, commits rape on
such woman; or
• EX: RAYA SARKAR’S “THE LIST”
• EX: INCEST
• g. commits rape during communal or sectarian violence; or
• h. commits rape on a woman knowing her to be pregnant; or
• i. commits rape on a woman when she is under sixteen years of
age; or
• j. commits rape, on a woman incapable of giving consent; or
• k. being in a position of control or dominance over a
woman, commits rape on such woman; or
• l. commits rape on a woman suffering from mental or
physical disability; or
• m. while committing rape causes grievous bodily harm or
maims or disfigures or endangers the life of a woman; or
• n. commits rape repeatedly on the same woman,
• EX: Hardik’s case??
• shall be punished with rigorous imprisonment for a term
which shall not be less than ten years, but which may
extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural
life, and shall also be liable to fine.
• Explanation.—For the purposes of this sub-section,—
• a. "armed forces" means the naval, military and air forces
and includes any member of the Armed Forces constituted under
any Jaw for the time being in force, including the paramilitary
forces and any auxiliary forces that are under the control of the
Central Government!, or the State Government;
• b. "hospital" means the precincts of the hospital and includes
the precincts of any institution for the reception and treatment
of persons during convalescence or of persons requiring
medical attention or rehabilitation;
• c. "police officer" shall have the same meaning as assigned
to the expression "police" under the Police Act, 1861;
• d. "women's or children's institution" means an institution,
whether called an orphanage or a home for neglected women
or children or a widow's home or an institution called by any
other name, which is established and maintained for the
reception and care of women or children.
• 7 years may extend to Life Imprisonment.
• Judges have no discretion to reduce this sentence from 7 years.
• Some scholars have argued that it is counter-productive as now the
discretion will move from Judges to Police while reporting. If you
revoke discretion, it manifests itself differently. What you need to
do is have reasoning in sentencing. Judges never held accountable
for irrelevant reasons. In context of India sentencing: identify
factors that are relevant in sentencing. Mitigating/aggravating
factors should be listed. You should be appealing on the reasons
judge has considered in giving the sentence.
• In Rape trials, Burden is on the woman to show that it was not
consensual. That’s why all the facts like pre crime history, past
sexual history, conduct prior to Rape (like adultery in Farooqi)
become relevant in determination.
• Clause 2= 10 years or Life Imprisonment.
• Why 2 categories of punishment??  To address gravity of crime.
Applying discretion over quantum of punishment; mitigating &
aggravating factors considered:-
• Age/Situation of victim.
• Circumstances of accused (dependents).
• ‘Special’ & adequate circumstances.
• Delay not material if properly explained.
• Court sensitive towards practicality & social reality.
• Rape not just physical injury but more indefinitely leaves a scare on
the most cherished possession of a woman= her dignity, honor
• Ideal punishment for Sexual offenders??
• Krishna Iyer stated: Sentencing efficiency in case of lust loaded
criminality cannot be simplistically assumed by award of long
incarceration; that remedy aggravates the malady.
• Death Penalty??= Might be retrogressive.
• Consensual Incest= punishable??
• You can’t sentence to the same punishment. If there is no disparity, it is
arbitrary.
• Do stereotypes affect the sentencing process? The site of
stereotyping has moved from guilt determination to sentencing?
• SHAME, HONOR, VIRGINITY, CHASTITY, PROSPECTS OF MARRIAGE
• Rafeeq v State of UP: In every case, when a woman experiences rape,
she experiences a deep sense of Deathless shame in victim of rape
(IYER).
• Farooqi: Nobody would go to a restaurant in Hauz Khas village after
the incident happened. You will stay cooped up in your room.
• There was a girl under age of 16, alleged she has been raped by
consent. Statutory rape. Only need to prove intercourse happened.
Whether you should believe the victim or not?
• Corroboration may be considered essential to establish a sexual offence in the
backdrop of the social ecology of the Western World. It is wholly unnecessary to import
the said concept on a turn-key basis and to transplant it on the Indian soil
regardless of the altogether different atmosphere, attitudes, mores, responses of the
Indian Society, and its profile. The identities of the two worlds are different. The solution
of problems cannot therefore be identical.
• It is conceivable in the Western Society that a female may level false
accusation as regards sexual molestation against a male for several
reasons such as:-
• (1) The female may be a 'gold digger' and may well have an economic motive-to
extract money by holding out the gun of prosecution or public exposure;
• (2) She may be suffering from psychological neurosis and may seek an escape from
the neurotic prison by fantasizing or imagining a situation where she is desired, wanted
and chased, by males.
• It is conceivable in the Western Society that a female may level
false accusation as regards sexual molestation against a male for
several reasons such as:-
• (3) She may want to wreak vengeance on the male for real or imaginary
wrongs. She may have a grudge against a particular male, or males in
general, and may have the design to square the account;
• (4) She may have been induced to do so in consideration of economic
rewards, by a person interested in placing the Accused in compromising or
embarrassing position, on account of personal or political vendetta;
• (5) She may do so to gain notoriety or publicity or to appease her own ego,
or to satisfy her feeling of self-importance in the context of her inferiority
complex;
• (6) She may do so on account of jealousy;
• (7) She may do so to win sympathy of others;
• (8) She may do so upon being repulsed. By and large these Factors are
not relevant to India, and the Indian Conditions.
• Rarely will a girl or a woman in India make such false
allegations of sexual assault, whether she belongs to the urban
or rural society, or, sophisticated, or, not-so sophisticated, or,
unsophisticated society. Only very rarely can one conceivably
come across an exception or two and that too possibly from
amongst the urban elites. Because:-
• (1) A girl or a woman in the tradition bound non-permissive Society of India
would be extremely reluctant even to admit that any incident which is likely to
reflect on her chastity had ever occurred;
• (2) She would be conscious of the danger of being ostracized by the Society
or being looked down by the society including by her own family members,
relatives, friends, and neighbors;
• (3) She would have to brave the whole world;
• (4) She would face the risk of losing the love and respect of her own
husband and near relatives, and of her matrimonial home and happiness
being shattered;
• (5) If she is unmarried, she would apprehend that it would be, difficult to
secure an alliance with a suitable match from a respectable or an acceptable
family;
• (6) lt would almost inevitably and almost invariably result in mental torture
and suffering to herself;
• (7) The fear of being taunted by others will always haunt her;
• Because:-
• (8) She would feel extremely embarrassed in relating the incident to others
being over powered by feeling of shame on account of the upbringing in a
tradition bound society where by and large sex is taboo;
• (9) The natural inclination would be to avoid giving publicity to the
incident lest the family name and family honour is brought into controversy;
• (10) The parents of an unmarried girl as also the husband and members of
the husband's family of a married woman, would also more often than not,
want to avoid publicity on account of the fear of social stigma on the family
name and family honour;
• (11) The fear of the victim herself being considered to be promiscuous or
in some way responsible for the incident regardless of her innocence;
• (12) The reluctance to face interrogation by the investigating agency, to
face the court, to face the cross examination by Counsel for the culprit, and
the risk of being disbelieved, acts as a deterrent.
• In view of these factors the victims and their relatives are not too keen
to bring the culprit to books. And when in the face of these factors the
crime is brought to light there is a built in assurance that the charge is
genuine rather than fabricated.
• Rafiq v State of UP (1980): “When rapists are reveling in their
promiscuous pursuits and half of humankind - womankind - is
protesting against its hapless lot, when no woman of honour will
accuse another of rape since she sacrifices thereby what is
dearest to her, we cannot cling to a fossil formula and insist on
corroborative testimony, even if taken as a whole, the case
spoken to by the victim strikes a judicial mind as probable. In
this case, the testimony has commanded acceptance from two
courts. When a woman is ravished what is inflicted is not merely
physical injury, but "the deep sense of some deathless shame".
• Whoever, commits an offence punishable under sub-section
(l) or sub-section (2) of section 376 and in the course of such
commission inflicts an injury which causes the death of the
woman or causes the woman to be in a persistent vegetative
state, shall be punished with rigorous imprisonment for a term
which shall not be less than twenty years, but which may
extend to imprisonment for life, which shall mean imprisonment
for the remainder of that person's natural life, or with death.
• 1. Causing death or
• 2. Persistent vegetative state of victim

• In continuation of S. 376. Other than rape; if victim’s death is

caused or results in persistent vegetative state; then higher
imprisonment.
• = not less than 20 years may extend to life imprisonment
(natural death)
• Whoever has sexual intercourse with his own wife, who is
living separately, whether under a decree of separation or
otherwise, without her consent, shall be punished with
imprisonment of either description for a term which shall not be
less than two years but which may extend to seven years, and shall
also be liable to fine.

• Explanation.—In this section, "sexual intercourse" shall mean

any of the acts mentioned in clauses (a) to (d) of section 375.
• “Sexual intercourse” by “husband’ or/’and’ wife during
separation.
• Separation= ‘either by decree of separation’ or ‘otherwise’ 
(any time frame??)
• w/o Consent sex= not less than 2 years of imprisonment but
may extend to 7 years & fine.
• Explanation = ‘Sexual intercourse’ = includes Clause (a) to (d)
of Section 375.
• Idea = By marrying; the wife has given consent for exercise
of marital rights by husband BUT by judicial separation or
under any custom or usage; if wife & husband living
separately = Consent is withdrawn.
• Whoever, being—
• a. in a position of authority or in a fiduciary relationship; or
• b. a public servant; or
• c. superintendent or manager of a jail, remand home or other
place of custody established by or under any law for the time being in
force, or a women's or children's institution; or
• d. on the management of a hospital or being on the staff of a
hospital,
abuses such position or fiduciary relationship to induce or seduce any
woman either in his custody or under his charge or present in the premises
to have sexual intercourse with him, such sexual intercourse not
amounting to the offence of rape, shall be punished with rigorous
imprisonment of either description for a term which shall not be less
than five years, but which may extend to ten years, and shall also be
liable to fine.
• Explanation l.—In this section, "sexual intercourse" shall mean any
of the acts mentioned in clauses (a) to (d) of section 375.
• Explanation 2. —For the purposes of this section, Explanation I to
section 375 shall also be applicable.
• Explanation 3.—"Superintendent", in relation to a jail, remand
home or other place of custody or a women's or children's
institution, includes a person holding any other office in such jail,
remand home, place or institution by virtue of which such person
can exercise any authority or control over its inmates.
• Explanation 4.—The expressions "hospital" and "women's or
children's institution" shall respectively have the same meaning as
in Explanation to sub-section (2) of section 376
• ‘Sexual intercourse’ by ‘person in authority’
• Whoever= (a) to (d) = abuses relationship/position to induce/
seduce any woman to have ‘sexual intercourse’= such
intercourse ‘not’ amounting to ‘rape’. = punished with no less
than 5 years but may extend to 10 years & fine
• Where a woman is raped by one or more persons constituting
a group or acting in furtherance of a common intention, each
of those persons shall be deemed to have committed the
offence of rape and shall be punished with rigorous
imprisonment for a term which shall not be less than twenty years,
but which may extend to life which shall mean imprisonment for
the remainder of that person's natural life, and with fine:

• Provided that such fine shall be just and reasonable to meet the
medical expenses and rehabilitation of the victim:

• Provided further that any fine imposed under this section shall
be paid to the victim.
• Section 34: Joint liability principle.
• 1 or more person.
• Acting in common intention (How to know)
• Each of them deemed to have raped
• Punishment= not less than 20 years may extend to reminder of
natural life.
• Fine= Just & reasonable (medical expenses & rehabilitation
cost)
• Whoever has been previously convicted of an offence
punishable under section 376 or section 376A or section 376D
and is subsequently convicted of an offence punishable under
any of the said sections shall be punished with imprisonment
for life which shall mean imprisonment for the remainder of
that person's natural life, or with death.'.
• Repeat offenders: (How different from Section 376 (2) (n)?
• It talks about repeat rape of a woman.
• Under Section 376 or 376 A or 376 D= repeat offender.
• Punishment= Imprisonment for remainder of natural life.
• ISSUE: Whether both the appellants are guilty of rape under
section 375 of the IPC? Were the appellants guilty under section 34
of the IPC?
• Mathura (victim) fell in love with her employers cousin and hoped to
marry him. Her brother lodged a complaint of kidnapping to the
police.
• They were all brought to the police station at night to record their
statements and were allowed to leave at 10.30 p.m., but the
appellants directed Mathura to stay back.
• Ganpat (appellant) took Mathura into a latrine, loosened her
underwear, stared at her private parts and then raped her.
• Then Tukaram who was sitting on the cot while Ganpat had her way
with Mathura.
• Fondled her private parts after Ganpat left and also wanted to rape
her, but was too intoxicated to do so.
• Mathura’s employer, brother and lover waited outside for
Mathura as the police station was locked from the inside and
the light were switched off.
• A crowd then assembled in front of the police station.
• The two appellants then emerged outside to tell the crowd that
nothing was wrong and that the girls has already left.
• Shortly after Mathura emerged from the rear of the station and
informed the crowd that the constables raped her.

• The medical examination suggested the following-

• Mathura was approximately 14-16 years old.
• That Mathura was not injured.
• Her hymen had old ruptures
• There was no matting of pubic hair and no semen was found
on the vaginal smear slides.
• Semen was however found on her clothes and pajama.
• No proof that Mathura is 16 years old and is thus old enough
to have consensual sex.
• Court stated that there is a world of difference between sexual
intercourse and rape; in this case the prosecution is unable to
prove the latter.
• Mathura was a “shocking liar’’ and her testimony is riddled
with falsehood.
• Court stated that it is likely that she had sexual intercourse in
the police station as rape was not proven and she was
habituated with sexual intercourse.
• She probably invented the story to make herself seem
virtuous to her lover.
• Reversed the order of acquittal ordered by the district judge.
• The fact that semen was not found on the public hair nor on
the vaginal smears was because the medical examination
took place 20 hours after the event. There is a very high
probability that she had taken a bath in that time.
• Session court should have differentiated between consent and
passive submission.
• As the accused were strangers to Mathura it is highly
improbable that she would have consensual sex with them.
• The initiative or first move must’ve come from the accused
and if it did she could not have resisted. Bringing in the
difference between consent and “passive submission”.
• “Mere passive or helpless surrender of the body and its resignation
to the other's lust induced by threats or fear cannot be equated
with the desire or will…”
• Mathura was in the police station at the dead hour of night so
this increases the probability that the initiative must have first
come from the accused.
• Her conduct in making a statement in front of not only her
relatives and lover but also the crowd in front of the police
station leaves no doubt that she was raped.
• The high court stated that although Tukuram did not rape the
girly he did fondle with Mathura’s private parts after Ganpat
raped her.
• High court thus convicts the two appellants.
• The Bombay High Court (Nagpur Bench) reversed the filing and
sentenced Tukaram to rigorous imprisonment for one year and
Ganpat for five years.
• Its grounds for reversal were that since both these ‘gentlemen’
were perfect strangers to Mathura, it was highly unlikely that “she
would make any overtunes or invite the accused to satisfy her
sexual desires”.
• Nor could she have resisted her assailants.
• The High Court came to the conclusion that the policemen had
“taken advantage of the fact that Mathura was involved in a
complaint filed by her brother, and she was alone in the
dead hour of the night” in a police station. This proved that
she could not, in any probability, have consented to intercourse.
The appellant challenged the decision of the High Court
and argued:
• No proof that the girl was under any fear to
justify the claim of “passive submission”
• The intercourse was a peaceful affair and her
story was fabricated.
• The girl did not shout in protest.
• High court ignores the fact that the case begins when
Mathura and her lover were leaving the police station
as it was then that Ganpat caught her.
• The intercourse was clearly consensual as there was no injury
on her body so it was done in a “peaceful way’’.
• The court disbelieves her claim that she shouted for help.
• On the basis of passive submission argument the Supreme court
criticizes it on 2 grounds-
• When she was leaving the police station she could easily resist
Ganpat grabbing her as her brother was within view and a normal
reaction would be to shake off him grip on her arm but she did not.
• The second reason is that under section 375 clause 3 rape is
committed if she is under the fear of death or hurt. In this case
there is no finding to show that such a degree of fear is justified.
• The sentence against Tukaram has no proof and simply taking her word which
has proven to be untruthful cannot be done in this case.
• The judgment of the High court is thus reversed.
• The judgement given by the SC has ignored the basic rights of
women.
• The Supreme court has overlooked a number of material facts-
• The fact remains that she was asked to remain in the police station even
after her statement was recorded and her friends and relations were asked to
leave. Why?
• The fact remains that Tukaram did nothing whatsoever to rescue the girl
from Ganpat. Why did Tukaram not help Mathura? Why was Tukaram being
intoxicated not taken into account? Why were the lights put off and doors
shut?
• How could a girl (laborer) of 14-16 (the aspect of age is disputed with all
the courts so it not clear how old she actually is) years of age be expected
to put a resistance to two well built policemen. Does the absence of such
marks necessarily imply absence of stiff resistance? If anything it is Ganpat’s
body which would have disclosed marks of such resistance by Mathura, like
clawing and biting.
• An absence of shouts of help does in now way amount to consent.
• Maybe, the evidence of shouts for help and ‘stiff resistance’ is all “a
tissue of lies”.
• But does the absence of shouts justify an easy inference of consensual
intercourse in a police station? (Incidentally, what would be the Court’s
reaction if the victim was dumb or gagged?) In any event, how could the
fact of shouting within closed doors of a police station be established in
such cases?
• Does the Supreme Court believe that with the Sessions Judge that Mathura
was “habituated to sexual intercourse” to such an extent?
• And therefore further think that the semen marks on Mathura’s clothing could
have come from further sexual activities between the police incident and the
next morning when she was medically examined?
• What about semen marks on Ganpat’s trousers? Why these double
standards? Ganpat’s sexual habits give him the benefit of doubt of having
‘raped’ Mathura; her sexual habits make the Court disbelieve the story of the
rape altogether!
• How could the court believe that Mathura was so flirtatious that while her
brother, employer and lover are waiting outside she could not let go of the
opportunity to have ‘’fun’’ with two policemen. ‘
• Why did the supreme court only concentrate on the third component of
section 375.
• But the second component of Section 375 is when rape occurs without
her consent.
• There is a clear difference in law, and common sense, between
‘submission’ and ‘consent’.
• Consent involves submission; but the converse is not necessarily true.
Nor is absence of resistance necessarily indicative of consent. It appears
from the facts as stated by the Court and its holdings that there was
submission on the part of Mathura.
• But where was the finding on the crucial element of consent? Could not their
Lordships have extended their analysis of ‘consent’ in a manner truly
protective of the dignity and right of Mathura?
• One suspects that the Court gathered an impression from Mathura’s
liaison with her lover that she was a person of easy virtue. Is the
taboo against pre-marital sex so strong as to provide a license to
Indian police to rape young girls? Or to make them submit to their
desires in police station?
• Not one word was spoken about the unlawful detention of Mathura
with no proper cause and without legal access in the police station
late at night. Such unlawful detention was dealt with in Nandini Satpathy
v Dani (P.L.), where section 160 of the CRPC was emphasized to
prevent the detention of women at a police station as the section
clearly states that a woman can only be interrogated in her home.
• There was no need for Ganpat to ask Mathura to stay back in the
police station as the case that was filed was for kidnapping and
we know that she was never kidnapped as she was with her lover.
• Cases like these with its cold-blooded legalism snuffs out all
aspirations for the protection of human rights of millions of
Mathura’s in the Indian countryside. Why so?
• The Court gives no consideration whatsoever to the socio-economic
status, the lack of knowledge of legal rights, the age of the victim, lack of
access to legal services, and the fear complex which haunts the poor and
the exploited in Indian police stations.
• Mathura, with all her predicaments, has been fortunate that her
problem reached the High Court and your Court. But there are
millions of Mathura’s in whose situations even the first information
reports are not filed, medical investigations are not made in time,
who have no access to legal services at any level and who rarely
have the privilege of vocal community support for their plight.

• But what matters is a search for liberation from the colonial and
male-dominated notions of what may constitute the element of
consent, and the burden of proof, for rape which affect many
Mathura’s on the Indian countryside.
• The sessions Judge found this evidence insufficient to convict the
accused.
• The farthest he would go was to hold that Mathura had sexual
intercourse with Ganpat! But sexual intercourse cannot be
equated with rape; there was “a world of difference”, in law,
between the two. He feared that Mathura had cried ‘rape’ in
order to prove herself ‘virtuous’ before the crowd which included
her lover. He was also not sure that the semen on her clothes was
from intercourse with Ganpat; and although he was disinclined to
accept Ganpat’s claim that semen on his trousers was due to
habitual nocturnal discharges, he entertained the possibility that
the semen stains on his clothes may well be due to the possibility
of his having intercourse “with persons other than Mathura”
• Amendments to S 376 (2).
• Insertion of Sections 376A, 376B, 376C, 376D.

• Evidence Act:
• 114A. Presumption as to absence of consent in certain prosecutions
for rape - In a prosecution for rape under clause (a) or clause (b) or
clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of
section 376 of the Indian Penal Code, where sexual intercourse by the
accused is proved and the question is whether it was without the
consent of the woman alleged to have been raped and she states in
her evidence before the Court that she did not consent, the Court shall
presume that she did not consent.
• The Prosecutrix was a PHD candidate from Columbia University, who was in
Delhi to conduct research on Indian History.
• She was introduced to the appellant while conducting her research through a
common friend. They met thrice prior to them establishing regular
communication channels with one another.
• When they met the next time, at Hauz Khas Village, under the influence of
alcohol, they exchanged a kiss.
• They met the next time in his house, where he had been invited for a dinner
party, where the appellant’s wife was present. Again, under the influence of
alcohol, while his wife was absent, they exchanged a kiss.
• On the day of the incident, the appellant had invited the prosecutrix to a
wedding, an invitation which she accepted. She reached his residence at
9:00 PM so she could go for the wedding with him and his wife.
• On reaching his house, she found that he was drunk and crying bitter,
because of a disagreement he had with his wife and mother.
• Seeing his state, she called his brother Darrain, who conveyed
to her that he would be unable to come and that she should stay
back and take care of him.
• She attempted to comfort him, they exchanged kisses and she
told him that she felt very maternal towards him.
• He asked her if he could “Suck her”, a suggestion which she said
no to. He kept attempting to pull her clothing and underwear
down, she kept pulling it up, until such a time that she succumbed
to him and feigned an orgasm.
• She claimed to have remembered a clip from the Nirbhaya
documentary where her rapist said if she had not fought, she
would not have suffered the horrific fate that she did.
Cognizant of this fact, given his physical prowess over her and
his drunken state, she did not fight back and feigned an orgasm
so she may end the ordeal.
• She stuck around after the incident for 45 minutes until she took
a cab and left
• She did not immediately report the incident, she initially emailed him
letting him know that she found his conduct to be unacceptable. She
was extremely kind to him in this initial email.
• Later on, after speaking to her advisor, she sent him another email
condemning his actions in an extremely strong manner. He was in a
rehabilitation facility at this point, for treatment of his Bipolar
tendencies.
• She returned to New York for counselling, post which she filed a
complaint with the University.
• She then returned to India to file a complaint against the appellant.
• She refused to submit to any Gynaecological exams, but she
submitted her dress worn that day, her phone and laptop as well.
• TRIAL COURT: An Additional Sessions Judge in the District Court of
Saket found the appellant to be guilty under Section 376 of the
Indian Penal Code and had sentenced him to 7 Years of Rigorous
imprisonment and a fine of Rs. 50,000.
• ARGUMENTS BY PROSECUTION:
• The Victim was suffering from Rape Trauma Syndrome (RTS) and could not be
expected to act rationally. The time taken for her to lodge a complaint can
not be read into.
• As time goes, those who suffer through trauma may make minor alterations in
terms of their memory of the act itself. They remember the act in fragments
and their recollection of events can not always be 100%.
• The actions of a victim of a sexually violent crime can not be expected to act
in a rational way, her staying at the appellants house post the act can
similarly not be read into
• ARGUMENTS BY DEFENDANT:
• Based on the witness statements and the story presented by the prosecutrix,
the story’s do not tally up and the benefit of the doubt must be given to the
accused in this case
• Her story was inconsistent in parts
• She in a later email communicated that she had consented, but because she
feared for herself.
• The defense contended that amounted to her admitting her consent.
• The traditional trend of a simple yes or no being considered as
consent is one which the court finds difficult to accept as there
could be affirmative consent or positive denial and the consent
could be underlying or dormant which could lead to confusion in
the minds of the parties.
• The normal rule is that the consent has to be given and it cannot be
assumed. The judge stated that recent studies or trends showed
that most sexual encounters are initiated and consented to by
actions and non-verbal communication to initiate and reciprocate
consent.
• The judge went on to discuss the gender construct of consent. He
said that men are largely the initiators of sexual activity and women
are largely non-verbal. He said that gender roles influence consent as
men and women are socialised into gender roles which influence their
perception of consent. However, with gender and equality being key
words nowadays this can not be the situation
• Consent must be unambiguous, it must be communicated through
mutually understandable words and actions. Body language, non-
verbal communication or previous activity can not be taken as
consent. In this particular case, the judge said that the prosecutrix’s non
consent was not or could not have been known to the appellant.
• Regardless of the past activities between the appellant and the
prosecutrix, there must be consent every time either party
attempts to engage in a sexual act. The consent must be
unequivocal, categorical and may be given by words, gestures
and any other form of verbal and non-verbal communication.
Just because one does not physically resist the act, it must
not be considered consent if the individual does not do so.
This much is states in the proviso under section 375 (2) of the
Indian Penal Code.
• IF THERE IS A PRIOR CONNECTION BETWEEN TO PARTY’S
WHERE THEY HAVE ENGAGED IN PHYSICAL ACTS, A
HESITANT OR FEEBLE NO MAY NOT BE TAKEN TO BE A
DENIAL OF CONSENT.
• Under Section 375 of the Indian Penal Code, the appellant must
be aware that the consent has been given under a fear of
injury. The judge concurred with the defence’s argument that
the fear only existed in the mind of the prosecutrix, it was
not communicated to the appellant. Her actions contradicted
what was going on in her mind.
• The post rape reaction of the prosecutrix may not need to be
examined further by the court. The behaviour of one victim
can not be compared or generalised as the behaviour of
another in a rape case. A different coping mechanism used
by the prosecutrix can not be used to delegitimise her claim.
• Her allegedly erratic behaviour as contested by the defence
can be considered to be manifestations of her Rape Trauma
Syndrome.
• The question of consent is one which is fast becoming one which
is important to define. One of the main issues raised by this
case was whether the actions of the prosecutrix entailed
consent.
• On 23rd October, 2017, in a judgement by the Delhi High
Court, it was stated that silence can not be taken to mean consent
and that there can be no ambiguity with regard to consent.
• One doesn’t know where to start responding to this barrage of
speculations advanced by the High Court to reformulate real consent, real
resistance and real rape—the holy trinity of inexcusable defense in rape
cases.
• The Delhi High Court judgment acquitting Mahmood Farooqui is the
Kohinoor among the jewels of bad judgments in cases of sexual
violence and that is an admirable feat itself when it competes with
other appalling judgments and orders that even after the
progressive amendments to the law in 2013, continue to build bad
rape law precedents in this country.“
• The judicial activism in eroding progressive legislations has seen
the demise of S. 498A of the Indian Penal Code, assaulted the
understanding of ‘shared household’ in the domestic violence act,
and in cases like Farooqui, spun the definition of consent by adding
additional protective layers for the accused as a man of letters to
‘understand’ consent. The future of radical feminist politics survives on
confronting the judicial and popular hazing to articulate a collective
response to backlash. "
• To begin with, the court creates a new defense for
‘intellectually/academically proficient’ parties, who are ‘persons of
letters’ and not ‘conservative’ and unexposed to the ‘various ways and
systems of the world’ where a ‘feeble’ no, the court says would not
always mean a denial of consent (para 77).
• "The court also assumes that the accused, also a man of ‘letters’, known
to the survivor, did not understand that the survivor had said ‘no’,
because presumably the ‘no’ was ‘feeble’ and that the accused was
‘bipolar’ and unable to comprehend her response. The focus therefore
magically shifts from what the woman said to what the man
understood. This irony is even starker when one considers the
immediate instance—where the case of the accused in the trial court
was that the act not having taken place—it was an active denial on
grounds advanced by the accused that there was no opportunity or time
for oral sex and that there was no relationship between the accused
and the complainant."
• This bit in particular bears repeating and not just in context of
this judgement. People often harp on about how past
intimacy/friendship/relationship would give the MAN an
impression that No might mean yes, but few remember that
past sexual contact or past intimacy/friendship/relationship
etc engender trust in a WOMAN, make her feel that her NO,
her boundaries drawn by HER, will be respected.
• "Contrary to what is being argued in think pieces, consensual
intimacy in the past is bound to lead a woman to believe
that the man will accept her first signs of resistance and her
expressly communicated lack of consent. It will make a
woman believe that she doesn’t need to scream, shout,
physically hit back to make the man stop raping her."
• In this case, contrary to certain distortions of the facts, there
was no “relationship” between the parties. In a perverse and
deliberate misreading of facts, the sexual autonomy of the
prosecutrix, who owned her sexuality to affirm that there were
two consensual exchange of kisses in the past (and no relationship)
to repeatedly suggest that even though she continuously
communicated her lack of consent when the accused forced
himself on her, it was unreasonable to expect the accused to stop
raping her, because he did not understand her non-consent.
• It invents new defenses for the accused, tends to redefine rape law
and turns the definition of consent on its head and all these, by a
willful disregard of the existing law and a dishonest and confounded
appraisal of facts.
• The trial court last year convicted Farooqui on charges of rape. The
trial court had carefully examined the statement of witnesses, all
material evidence placed before it, the conduct of the victim and her
testimony to convict the accused. It found the statement of the
prosecutrix to be of sterling quality as well. More importantly it
understood the import of the newly added definition of ‘consent’ in S.
375 of the Indian Penal Code by locating ‘lack of consent’ in the
taking away of one’s control over her sexuality.
• The High Court disputes none of these findings. It holds that the
prosecutrix is a sterling witness (para 96 of the judgment) but
puzzlingly creates a separate class of survivors-- the ‘educated
women’ (like the prosecutrix) for whom the standard of ‘positive
denial’, it deems, will be higher.
• Needless to affirm, this bizarre and avowedly sexist judicial invention has
absolutely no basis in law. The definition of consent was added to the
expanded definition of rape in the 2013 criminal law amendments to mean
‘unequivocal voluntary agreement’ when the woman by words, gestures,
or any form of verbal or non-verbal communication, communicates
willingness to participate in the specific sexual act. The legislative intent
behind putting a definition to consent was to thwart decades of patriarchal and
prejudicial reading of ‘presence’ of consent in the judicial discourse where past
sexual history, absence of physical injury and other phallocentric commonsense
were considered.
• The Verma Committee while expanding the definition of rape had noted that
definition of rape should require the existence of ‘unequivocal and voluntary
agreement’ as well as proof by the accused of steps taken to ascertain whether
the complainant was consenting. This was in keeping with decades long struggle
by women’s groups to expand the definition of rape, include a definition of
consent and to ensure that the victim could access the legal system without the
threat of re-victimization. The High Court judgment in a twisted way proves why
the legislation felt the need to encode a definition of consent in S. 375 and shows
how in spite of that, the courtroom can be the graveyard for (progressive) law
reforms where its embedded patriarchy stubbornly makes a mockery of the object
and intent of the definition of consent.
• The accused in his statement before the trial Court denied any intimacy or physical
contact; he denied both these past instances of consensual kisses (as was stated by
the complainant); he even denied that any sexual act took place on the day of the
rape. In his statement before the Trial Court he categorically denies that there was
any intimacy between the victim and him at any point.
• He told the Trial Court that after he apologized to her via email, he called her on
the phone, “I told her that there had never been any intimacy between us and
there never shall be....” He also stated before the Trial Court, “It is an incorrect
statement given by the prosecutrix as I never sexually assaulted her nor did oral
sex with her.” In other words, there was nothing to warrant allegations of
‘feeble’ no arising from ‘misunderstanding’ (in the mind of the accused no doubt,
according to the High Court) based on past sexual behavior.
• The new ‘plea’, completely contradictory to the earlier plea, bordering on the
‘argument’ that, ‘if at all, such an occurrence had taken place, it was with the
consent of the prosecutrix’ was allowed to be added by the Judge as an
‘alternative plea’. Never mind, that the Supreme Court has also clearly laid down
that irreconcilable and contradictory stands should not find any favor in trials.
And yet, the court allows this and yet does not allow the complainant to lead
evidence on this ‘alternative’ plea, and happily qualifies the negative consent of
the complainant by garlanding it with an adjective (feeble), without giving the
complainant a chance to rebut this. How is a supposedly material fact that
consent was feeble tested here without a cross examination? The court is
putting word in her mouth. The court should have stuck to the evidence led
and tested in the trial court and not ‘infer’ from them.
• This is baffling because the fundamental principle of criminal law is to prove
facts and facts can be tested/proved only by cross examination of witness.
• On the question of consent, and this has already been said before-- the court
shows scant regard for the letter and spirit of the law. Consent is encoded in
the explanation to S. 375 of the IPC. It is an unequivocal voluntary agreement
when the woman verbally or non-verbally communicates willingness to
participate in the specific sexual act. The testimony of the woman in the trial
court on page 76 in the trial court judgment, gives an idea how many
times she said no, by words as well as gesture. Her subsequent conduct is
reproduced in the emails in the session court as well as the High Court
judgments. They together show that nowhere is her lack of consent
‘feeble’.
• What she had stated in her testimony in court, she had stated in her FIR
and her statement recorded under S. 164 CrPC. Her subsequent conduct is
reproduced in the emails in the Sessions Court as well as the High Court
judgments. They together show that nowhere is her lack of consent ‘feeble’
• There is no hole in this testimony, as deduced by the trial court as well as the
High Court [one may please read the pages 115 to 121 for emails ( please
see email dated 30.3.2015 at para 43, page 117), pages 122 to 125-
testimony of Prosecutrix, para 22 @ page 110 for 'consent', page 157 to
162- conclusion of the trial court judgment]. The High Court imagines this
consent to be ‘feeble’ while deciding a fresh plea on consent and does not
allow the prosecutrix to rebut this assumption.
• In fact, the statement of the victim in the Mahmood Farooqui case, which
has been accepted by the High Court as being of “sterling” quality, shows
beyond doubt that her lack of consent was emphatic, resounding, clear, and
expressly communicated:
• “At that time, accused kissed me. I said no. I pushed him away. He tried kissing
me again and he said “I want to suck you.” (the witness started weeping)
• I said no. He started putting his hand up my dress and pulling my underwear
down from one side. I was trying to pull my underwear up from the other side.
He held my arms and pinned my arms and body on the diwan. I said no. I
struggled to push him away but he was stronger than I was. I did not understand
how he could be that much strong. I was very scared. (The witness continued
weeping and restless).
• I thought two things. The first thing I thought “I had seen a clip from documentary
of Nirbhaya case where rapist had said that if she (victim) did not fight, she
would still be alive.” I thought that I am going to get out of this and survive.
Accused forced oral sex on me. I faked an orgasm because I wanted it to
end…”
• After communicating her lack of consent repeatedly through words, gestures
and actions, when the accused still does not stop forcing himself on her, and
in fact begins to use force and his physical strength to pin her down that she
is forced to submit and resorts to ending the ordeal. It is impossible to
imagine which part of this sterling testimony of the prosecutrix conjures an
impression of ‘feeble’ no in the mind of the judge.
• Factually, was the ‘no’ by the complainant ‘feeble’? The testimony
of the prosecutrix in the trial court on page 76 in the trial court
judgment, gives an idea how many times she said no, by words
as well as gesture.
• What counts as feeble? The court frankly had no business to
qualify her lack of consent by conjuring an adjective. The court in
Para 85 of the judgment says "in an act of passion, actuated by
libido , there are myriad circumstances which can surround a
consent and it may not necessarily always mean yes in case of
yes or no in case of no”. This is absolutely unacceptable.
• This is the kind of Bollywood logic that has pervaded a courtroom
culture in rape cases and this is why the Verma Committee
suggested the incorporation of a definition of consent in IPC,
which was incorporated later in the 2013 amendment.
• We all know how 'consent' of the prosecutrix is crafted by the
court through an assortment of past sexual history, victim blaming
and the like.
• Legally, does it matter, even if hypothetically one assumes that it was a
‘feeble’ no? It doesn’t. The definition of consent was added to the
expanded definition of rape in the 2013 amendments for a reason.
Again, past intimacy of a consensual nature must not have any
bearing on the trial. The law prevents the accused from raising
irrelevant facts such as past sexual history and victim blaming and
shaming during the trial and yet one finds the text of the judgment
allowing past history to intervene, to show at the very least that the
accused did not understand the communication of negative consent
from the complainant. There is no doubt that consent, lack of
consent and expression of lack of consent is different in situations
where there has been past sexual intimacy. But in a situation where
the woman has stated that she expressed her lack of consent
repeatedly (and the same is unchallenged during cross-examination)
and where the accused has repeatedly denied that any sexual act took
place, either in the past or on the day of the rape, can a court or public
commentators claim that they know that the accused did not understand
the ‘No’ because they as third person have decided that the ‘No’ was
feeble, not resounding and not emphatic?
• The law also prevents the accused from raising irrelevant facts such as past
sexual history and victim blaming and shaming during the trial [S. 146]. And
yet we find the court allowing to put on record the past sexual history of
the victim to prove consent.
• Additionally the most baffling part is this juridical imagination of the state of
mind of the accused.
• Similarly, while ‘bipolar’ condition was not a defense (and nor is it a valid
defense in law) advanced by the accused, and surfaces only by way of
email communication between the complainant and the wife of the accused,
the court invents it as a plausible defense speculating reasons for non-
comprehension of negative consent by the accused, while hastening to
add that it would not venture into a speculative field since no material
has been advanced by the accused. Good part of the judgment seems to
hinge on the fact which was not pleaded, that accused was bipolar and
hence unable to understand lack of consent conveyed by the victim.
• Is the court trying to say for example, that a drunk man who forces
himself on the victim in spite of her categorical lack of consent is not
guilty because he was unable to comprehend anything because he was
drunk. How is this even a legal defense let alone a moral one?
• The common law of ‘coverture’: Matthew Hale: ‘The husband
cannot be guilty of rape committed by himself upon his lawful
wife, for by their mutual matrimonial consent and contract the wife
hath given herself up in this kind unto her husband which she
cannot retract’. (1736)
• 172nd Report of the Law Commission: Recommended that the
age in Exception be raised to 16, but did not recommend its
removal. Because this “may amount to excessive interference
with the marital relationship.”
• European Court of Human Rights: a rapist remains a rapist
regardless of his relationship with the victim.
• Verma Committee Report:
• ‘We, therefore, recommend that:
• i. The exception for marital rape be removed.
• ii. The law ought to specify that:
• a. A marital or other relationship between the perpetrator or victim is not
a valid defence against the crimes of rape or sexual violation;
• b. The relationship between the accused and the complainant is not
relevant to the inquiry into whether the complainant consented to the
sexual activity;
• c. The fact that the accused and victim are married or in another intimate
relationship may not be regarded as a mitigating factor justifying lower
sentences for rape.’
• Issue: Whether sexual intercourse between a man and his wife, being
a girl between 15 and 18 years of age, is rape?
• Court:
• 1. The problem of child marriages and the law’s contradictory
treatment of it in the Prohibition of Child Marriage Act, 2006 and
other personal laws.
• NFHS 2005: 46% of women between the ages of 18 and 29 were married
before the age of 18. Estimates are that there are currently about 23 million
child brides in the country.
• 2. The definition of ‘penetrative sexual assault’ in the Protection of
Children from Sexual Offences Act, 2012 (POCSO) not making such
an exception for husbands. In fact, rape committed by a person who
is related to the victim inter alia though marriage is ‘aggravated’
penetrative sexual assault.
• ‘we are left with absolutely no other option but to harmonize
the system of laws relating to children and require Exception 2
to Section 375 of the IPC to now be meaningfully read as:
“Sexual intercourse or sexual acts by a man with his own
wife, the wife not being under eighteen years of age, is not
rape.” ‘
• The court read down Exception 2 to Section 375 (rape) of the Indian
Penal Code (IPC), which allowed the husband of a girl child —
between 15 and 18 years of age — blanket liberty and freedom to
have non-consensual sexual intercourse with her. Her willingness or
consent was of no concern. The husband in such cases was not
punished for rape.
• The exception had remained an anomaly because Section 375 itself
mandated that sex with a girl below 18 years of age, with or without
her consent, was statutory rape. An unmarried girl child can prosecute
her rapist, but a married girl child aged between 15 and 18 could
not even do that
• The court held that the exception clause to rape, carved out in the
IPC, created an unnecessary and artificial distinction between a
married girl child and an unmarried girl child. The clause took away
the right of a girl child to bodily integrity and reproductive choice. It
had even the effect of turning a blind eye to trafficking of the minor
girl children in the guise of marriage.
• “
• Almost every statute in India recognizes that a girl below 18
years of age is a child and it is for this reason that the law
penalizes sexual intercourse with a girl who is below 18
years of age. Unfortunately, by virtue of Exception 2 to Section
375 of the IPC, if a girl child between 15 and 18 years of age
is married, her husband can have non-consensual sexual
intercourse with her, without being penalized under the IPC, only
because she is married to him and for no other reason,” the
apex court explained the discrimination shown to a 'married'
girl child.
• The Hon’ble Supreme Court has captured the ethos and spirit of
Articles 15(3) and 21 of the Constitution and held that an
interpretation of a provision must be in keeping with the best
interest of the girl child. The judgment has also reinforced the
concept of bodily integrity and reproductive choice of the girl
child.
• The judgment has discussed in extenso the rigors of the
POCSO Act which defines “penetrative sexual assault” and
includes within its fold a girl or a boy child under the age of
18 years. Similarly the JJ Act also takes within its ambit all
children who are below 18 years of age. Also, the PCMA has
the minimum age of marriage as 18 years. The incongruity
between these special legislations which are pro-child and IPC
must be harmonized by giving primacy to the former over the
latter in terms of Sections 5 and 41 of IPC. The Supreme Court
has applied the harmonious and purposive construction to read
down Exception 2 to Section 375 of IPC and held that sexual
intercourse by a man with his own wife who is below 18 years is
statutory rape.
• The Supreme Court read down Exception 2 to Section 375 of the Indian
Penal Code, 1860 to be meaningfully read as:
• “Sexual intercourse or sexual acts by a man with his own wife, the wife not
being under eighteen years (instead of fifteen years as provided in the
Indian Penal Code, 1860) of age, is not rape.”...
• A girl child below the age of 18 cannot be treated as a commodity having
no say over her body or someone who has no right to deny sexual
intercourse to her husband
• “Human rights of a girl child are very much alive and kicking whether she is
married or not and deserve recognition and acceptance.”
• “A child remains a child whether she is described as a street child or a
surrendered child or an abandoned child or an adopted child. Similarly, a
child remains a child whether she is a married child or an unmarried child or
a divorced child or a separated or widowed child. At this stage we are
reminded of Shakespeare’s eternal view that a rose by any other name would
smell as sweet — so also with the status of a child, despite any prefix,”
• An exception to the offence of rape exists in relation to un-
consented sexual intercourse by a husband upon a wife. The
Committee recommended that the exception to marital rape
should be removed. Marriage should not be considered as an
irrevocable consent to sexual acts. Therefore, with regard to an
inquiry about whether the complainant consented to the sexual
activity, the relationship between the victim and the accused
should not be relevant.
• The Verma Committee Report: “We do think that the criterion that ‘a
stigma attaches to the rape victim in Indian society’ is a counter-
productive basis of appraisal. We do not think the victim suffers a
stigma. It is a stigma against society. The rights of women in the
context of the Constitution are clearly intended to overcome all
negative perceptions generated against them. We do think that the
reiteration of the theory of stigma and shame has itself led to an
‘unintended’ diminution of the status of the victim. In other words, the
victims can and ought to recover like any other victims from an
accident, but that is possible only when there is a due discharge of
the functions by the State… We believe that there is no danger and
no shame or loss of honour in a victim seeking redressal by filing
complaints and must in fact exercise, consistent with fundamental
rights of women, the right to file complaints and bring offenders to
book… If the depiction of the Indian society is what is depicted by
Thakkar, J. in 1983, we must change the situation.”
• The Report also quotes Sohaila Abdulali who recounted her
experience: “Rape is horrible. But it is not horrible for all the reasons
that have been drilled into the heads of Indian women. It is horrible
because you are violated, you are scared, someone else takes control
of your body and hurts you in the most intimate way. It is not horrible
because you lose your “virtue.” It is not horrible because your father
and your brother are dishonored. I reject the notion that my virtue is
located in my vagina, just as I reject the notion that men’s brains are
in their genitals.
• If we take honor out of the equation, rape will still be horrible, but it
will be a personal, and not a societal, horror. We will be able to give
women who have been assaulted what they truly need: not a load of
rubbish about how they should feel guilty or ashamed, but empathy
for going through a terrible trauma.”
• 377. Unnatural offences.—Whoever “voluntarily” has carnal
intercourse against the order of nature with any man, woman
or animal, shall be punished with imprisonment for life or with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.
• Explanation.—Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in this section.
• The accused must have carnal intercourse with a man, or a woman or an
animal
• The act was against the order of nature
• The act was done voluntarily by the accused.
• There was proof of penetration
• Lord Macaulay on S 377: (as quoted in the Suresh K Kaushal
judgment): Unnatural offences ‘“relate to an odious class of offences
respecting which it is desirable that as little as possible be said. We
leave without comment to the judgment of his Lordship in Council the
two Clauses which we have provided for these offences. We are
unwilling to insert, either in the text, or in the notes, anything which
could have given rise to public discussion on this revolting subject; as
we are decidedly of the opinion that the injury which would be done
to the morals of the community by such discussion would far more than
compensate for any benefits which might be derived from legislative
measures framed with the greatest precision.”
• [Note M on Offences Against the Body in Penal Code of 1837 –
Report of the Indian Law Commission on the Penal Code, October 14,
1837.] ‘
• Carnal intercourse against order of nature with any man,
woman or animal.
• (VERY VAGUE): Section 377 criminalizes sexual activity ‘against the
order of nature’. i.e. criminalizes any sexual activity other than the
heterosexual penile-vaginal
• Law envisions a homosexual subject [LGBT]
• Punished= Life imprisonment or may extend to 10 years
• Explanation = Penetration = sufficient for carnal intercourse.
• Norshiwan Irani: Penetration is required: however little. Where
accused before he could thrust his organ; ‘spent’ himself= can’t
be said to have done any act u/s 377.
• ‘Consent’ is immaterial. Party consenting is equally liable as
abettor.
• Unnatural offences= ‘Sodomy; Bestiality’
• Sodomy = intercourse/penetration per annus by a Man with a man
(homosexual) or with a woman (heterosexual) or an animal
• In 2013, Delhi-based author Akhil Katyal published a poem "Girl, when
you" satirizing Section 377 and how it implicates heterosexual acts as well.
• ‘Consent’ is no defense.
• Homosexual practices in private between consenting males is no more an
offense in England. [MOVIE: Imitation Game] (Buggery Acts)
• ‘Agent’= Person effecting intercourse.
• ‘Patient’= other party
• Heterosexual = already covered u/S 375 now after amended so
“DOUBLE”
• BESTIALITY: Sexual intercourse either by ‘Man’ OR ‘Woman’ in
anyway with a beast (animal) or bird.
• Includes ‘woman’ as well.
• Inanimate object included??
• NO!!
• ISSUE: Whether Section 377, in so far it criminalizes consensual sexual
activity of two adults of the same sex in private, is violating Article
21(Right to life and personal liberty) guaranteed by the Constitution of
India?
• The NAZ Foundation (India) Trust (NI) is a New Delhi based NGO that has
been working on HIV/AIDS and sexual health from 1994 onwards.
• They filed a writ petition in the Delhi High Court challenging the
constitutional validity of Section 377 of the Indian Penal Code.
• This section penalizes unlawful sexual acts ‘against the order of
nature’ which has the effect of criminalizing even consensual sexual
intercourse between two adults of the same sex or even of the opposite
sex indulging in penile non-vaginal sexual activities.
• The petitioner contended that Section 377 encroached upon Articles 14,
15, 19 and 21 of the Constitution of India and also that the section
ought not to criminalize consensual penile non vaginal sex between
two consenting adults of the same sex.
• In a milestone judgment conveyed on July 2, 2009, the Delhi
High Court decided that Section 377 of the Indian Penal Code,
1860 disregarded various fundamental rights, including the
right to privacy and right to dignity under the fundamental
right to life and liberty (Article 21), the right to equality
(Article 14), and forbiddance of separation on grounds of
sex (Article 15).
• The said decision was appealed against in the Supreme Court
of India in the Suresh Kumar Koushal and another v NAZ
Foundation and Others case and it was held that the Delhi
High Court was wrong in its findings and was also wrong in
reading down the section to allow consensual homosexual
activities between two adults of the same sex.
• NAZ Foundation case is an earnest emphasis of the vision of India’s
founding fathers to build an ‘inclusive’ and ‘tolerant’ republic. The
decision is a reminder that the Indian Constitution is a vibrant, living
document and its wide insurances must be alterably translated to include
new circumstances and tests.
• It was argued by the Respondents that Section 377 is based on
traditional Judeo-Christian moral and ethical standards and is being
used to legitimize discrimination against sexual minorities, i.e.
LGBTs. They also contended that the section is detrimental to people’s
lives and public health because of its direct impact on the lives of the
homosexuals and serves as a weapon for police abuse.
• It was further argued by the Respondents that Section 377, in so far as
it criminalizes consensual sexual activities between two adults of the
same sex and heterosexual penile non vaginal sexual intercourse
between consenting adults is violative of Articles 14, 15 and 21 of
the Indian Constitution.
• With regard to the first issue, the petitioners argued that Section 377, on the
face of it, does not mention or classify any particular group or gender and
hence is not violative of Article 14 and 15 and 21 respectively.
• The Court accepted their arguments and held that Section 377 is not violative
of Articles 14, 15 and 21 and that carnal intercourse, as intended and
defined by the petitioners to mean unnatural lust ought to be punished.
• Justice Singhvi also said that Section 377 is a pre-constitutional legislation and if it
were violative of any of the rights guaranteed under Part III, then the Parliament
would have noticed the same and repealed the section long ago. Based on this
reasoning, he declared the section to be constitutionally valid.
• He also said that doctrine of severability and the practice of reading down a
particular section flows from the presumption of constitutionality and that in the
said case, the Delhi High Court’s decision to read down the section was wrong
because there is no part of the section that can be severed without affecting
the section as a whole which also happens to be the only law which
governs cases of paedophilia and tyke sexual abuses and assaults.
• So, the Supreme Court held that Section 377 of the Indian Penal Code does
not suffer from any constitutional infirmity and left the matter to the
competent legislature to consider the desirability and legitimacy of deleting
the Section from the statute book or altering the same to allow consensual
sexual activity between two adults of the same sex in private.
• With little analysis, the court held that:
• “[T]hose who indulge in carnal intercourse in the ordinary course
and those who indulge in canal intercourse against the order of
nature constitute different classes [emphasis added] and the
people falling in the latter category cannot claim that Section 377
suffers from the vice of arbitrariness and irrational classification”.
• In reviewing the reading down of the Section 377 by the High
Court, the Supreme Court stated that the High Court had
overlooked the fact that “a miniscule fraction of the country’s
population constitute lesbians, gays, bisexuals or transgender” and
that over the last 150 years, fewer than 200 persons had been
prosecuted under Section 377, concluding from this that “this
cannot be made sound basis for declaring that section ultra vires
the provisions of Articles 14, 15 and 21 of the Constitution.” The
court also regarded the discriminatory treatment complained of
by the Naz Foundation as a result of Section 377 as being neither
mandated nor condoned by the provision itself and the fact that
the police authorities and others misuse
• Section 377 is used arbitrarily and it classifies between procreative sexual
activities and non procreative sexual activities which show no compelling
State interest to make such a law to regulate and deny such an important
fundamental right.
• Section 377 of IPC denies a person’s dignity and criminalizes his or her core
identity solely on account of his or her sexuality and thus violates Article 21 of
the Constitution. As it stands, Section 377 denies a gay person the right to full
personhood which is implicit in notion of life under Article 21 of the
Constitution.“
• Thus, consensual sexual activities between two adults of the same sex should not
be regulated by a law as it violates their Fundamental Rights and a person’s choice
of sexual accomplice is no business of the State to regulate on.
• Section 377 is abused to brutalize the persons belonging to the gay community.
• Sexual orientation and sexual activity is a matter of one’s privacy.
• Popular morality, as distinct from constitutional morality as derived from
constitutional values, is based on shifting notions of right and wrong and
as of today, a large chunk of elite population is in favor of the LGBT rights
and hence, this shows that the State is not even going by the popular
morality but by its own morality and if there is any type of morality that
can pass the test of compelling state interest, it should be constitutional
morality.
• “Section 377 criminalizes the acts of sexual minorities, particularly men
who have sex with men. It disproportionately affects them solely on the
basis of their sexual orientation. The provision runs counter to the
constitutional values and the notion of human dignity which is considered
to be the cornerstone of our Constitution”.

• The criminalization of certain actions which are an expression of

the core sexual personality of homosexual men makes them out to
be criminals with deleterious consequences impairing their human
dignity. As Section 377 outlaws sexual activity between men
which is by its very nature penile and non vaginal, it impacts
homosexual men at a deep level and restricts their right to dignity,
personhood and identity, equality and right to health by criminalizing
all forms of sexual intercourse that homosexual men can indulge in.

• The difference between obscene acts in private and public is

recognized in Section 294. It should be read in light of
constitutional provisions which include the right to be let alone.
• Criminalization increases stigma and discrimination and acts
as a barrier to HIV prevention programs. It thwarts health
services by preventing the collection of HIV data, impeding
dissemination of information, preventing the supply of
condoms; limiting access to health services, driving the
community underground, preventing disclosure of
symptoms, creating an absence of safe spaces leading to
risky sex.
• Assault or criminal force’
• Intent/to outrage modesty
• Knowledge
• Purpose:-
• to protect a woman against indecent assault
• Safeguard public morality & decent behavior.
• Modestly ??
• = nowhere defined. Depends on facts.
• Influenced by moral, social & legal ethos.
• Pandurang Mehta Case: SC stated essence of woman’s
modesty is her ‘sex’
• Reaction of woman is very relevant but its absence is
NOT always decisive.
• Rankripal case: S.C.= Section 354 applies to cases that
stop short of penetration. Lack of protest can’t be an
‘alibi’. Culpable intention of accused is the ‘crux’ of
matter.
• Ram Das Case: A man in train removed his pant before
sleeping. There were 2 woman with their husband there.
When he removed pant, there was exchange of words &
he pushed woman. Court no intention to outrage a
woman’s modesty & removing pants in night before
sleeping is a normal act.
• KPS GILL CASE: S.C.:- Dinner Party. KPS Gill
came & stood very close to Mrs. Bajaj. He
asked her to get up immediately & come along
with him; she refused & then he slapped her on
the posterior in full presence of all guests.
• Court: It is outrage of modesty & was not only
disrespectful but also affront of her dignity.
• Is it important that outrage of modesty to be
in public??
• NO.
• 1. A man committing any of the following acts—
• i. physical contact and advances involving unwelcome and explicit
sexual overtures; or
• ii. a demand or request for sexual favors; or
• iii. showing pornography against the will of a woman; or
• Iv. making sexually colored remarks, shall be guilty of the offence of
sexual harassment.
• 2. Any man who commits the offence specified in clause (I) or clause
(ii) or clause (iii) of sub-section (I) shall be punished with rigorous
imprisonment for a term which may extend to three years, or with fine,
or with both.
• 3. Any man who commits the offence specified in clause (iv) of sub-
section (I) shall be punished with imprisonment of either description for a
term which may extend to one year, or with fine, or with both
• Any man who assaults or uses criminal force to any woman or
abets such act with the intention of disrobing or compelling her
to be naked, shall be punished with imprisonment of either
description for a term which shall not be less than three years
but which may extend to seven years, and shall also be liable
to fine.
• Any man who watches, or captures the image of a woman engaging in a
private act in circumstances where she would usually have the
expectation of not being observed either by the perpetrator or by any
other person at the behest of the perpetrator or disseminates such
image shall be punished on first conviction with imprisonment of either
description for a term which shall not be less than one year, but which
may extend to three years, and shall also be liable to fine, and be
punished on a second or subsequent conviction, with imprisonment of
either description for a term which shall not be less than three years, but
which may extend to seven years, and shall also be liable to fine.
• Explanation I.— For the purpose of this section, "private act" includes
an act of watching carried out in a place which, in the circumstances,
would reasonably be expected to provide privacy and where the
victim's genitals, posterior or breasts are exposed or covered only in
underwear; or the victim is using a lavatory; or the victim is doing a
sexual act that is not of a kind ordinarily done in public.
• Explanation 2.— Where the victim consents to the capture of the
images or any act, but not to their dissemination to third persons and
where such image or act is disseminated, such dissemination shall be
considered an offence under this section.
• 1. Any man who—
• i. follows a woman and contacts, or attempts. to contact such woman to
foster personal interaction repeatedly despite a clear indication of disinterest by
such woman; or
• ii. monitors the use by a woman of the internet, email or any other form of
electronic communication, commits the offence of stalking:
• Provided that such conduct shall not amount to stalking if the man who pursued it
proves that—
• i. it was pursued for the purpose of preventing or detecting crime and the
man accused of stalking bad been entrusted with the responsibility of prevention
and detection of crime by the State; or
• ii. it was pursued under any law or to comply with any condition or
requirement imposed by any person under any law; or
• iii. in the particular circumstances such conduct was reasonable and justified.
• 2. Whoever commits the offence of stalking shall be punished on first
conviction with imprisonment of either description for a term which may extend to
three years, and shall also be liable to fine; and be punished on a second or
subsequent conviction, with imprisonment of either description for a term which
may extend to five years, and shall also be liable to fine.'.
• 292. Sale, etc., of obscene books, etc—

• (1) For the purposes of sub-section (2), a book, pamphlet,

paper, writing, drawing, painting, representation, figure or
any other object, shall be deemed to be obscene if it is
lascivious or appeals to the prurient interest or if its
effect, or (where it comprises two or more distinct items)
the effect of any one of its items, is, if taken as a whole,
such as to tend to deprave and corrupt person, who are
likely, having regard to all relevant circumstances, to
read, see or hear the matter contained or embodied in it.
• See People v Larry Flint (Hustler Magazine)
• Definition of obscenity: 292 (1):
• a book, pamphlet, paper, writing, drawing, painting,
representation, figure or any other object, which is
• is lascivious or appeals to the prurient interest, or
• is, if taken as a whole, such as to tend to deprave and corrupt,
• persons who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or
embodied in it.
• Whoever:
• (a) sells, lets to hire, distributes, publicly exhibits
or in any manner puts into circulation, or for
purposes of sale, hire, distribution, public
exhibition or circulation, makes, produces or has
in his possession any obscene book, pamphlet,
paper, drawing, painting, representation or figure or
any other obscene object whatsoever, or
• (b) imports, exports or conveys any obscene
object for any of the purposes aforesaid, or knowing
or having reason to believe that such object will be
sold, let to hire, distributed or publicly exhibited or
in any manner put into circulation, or
• (2) Whoever—
• (c) takes part in or receives profits from any business in the course of
which he knows or has reason to believe that any such obscene
objects are for any of the purposes aforesaid, made, produced,
purchased, kept, imported, exported, conveyed, publicly exhibited or
in any manner put into circulation, or
• PORNOGRAPHIC MATERIALS
• (d) advertises or makes known by any means whatsoever that any
person is engaged or is ready to engage in any act which is an
offence under this section, or that any such obscene object can be
procured from or through any person, or
• (e) offers or attempts to do any act which is an offence under this
section, shall be punished on first conviction with imprisonment of either
description for a term which may extend to two years, and with fine
which may extend to two thousand rupees, and, in the event of a
second or subsequent conviction, with imprisonment of either description
for a term which may extend to five years, and also with fine which
may extend to five thousand rupees.
• Whoever
• sells,
• lets to hire,
• distributes,
• publicity exhibits or
• in any manner puts into circulation,
• or for purposes of sale, hire, distribution, public exhibition or circulation,
• makes, produces or has in his possession
• any obscene book, pamphlet, paper, drawing, painting, representation or
figure or any other obscene object whatsoever,
• imports, exports or conveys any obscene object for the aforesaid
purposes,
• takes part in any business which involves the above,
• Advertises in respect of any of the above acts,
• offers or attempts to do any of the above.
• (Exception) —This section does not extend to—
• (a) any book, pamphlet, paper, writing, drawing, painting, repre-
sentation or figure—
• (i) the publication of which is proved to be justified as being for the
PUBLIC GOOD on the ground that such book, pamphlet, paper, writing,
drawing, painting, representation or figure is in the interest of science,
literature, art or learning or other objects of general concern, or
• (ii) which is kept or used BONA FIDE FOR RELIGIOUS PURPOSES;
• (b) any representation sculptured, engraved, painted or otherwise
represented on or in—
• (i) any ancient monument within the meaning of the Ancient Monu-
ments and Archaeological Sites and Remains Act, 1958, or
• EX: AJANTA ELLORA CAVES
• (ii) any temple, or on any car used for the conveyance of idols, or
kept or used for any religious purpose.
• Exception:
• Publication proved to be justified as being for the public good
on the ground that such object is in the interest of science,
literature, art or learning or other objects of general concern, or
• For religious purposes
• Ancient monuments
• Sale, etc., of obscene objects to young person.—
Whoever sells, lets to hire, distributes, exhibits or
circulates to any person under the age of twenty years
any such obscene object as is referred to in the last
preceding section, or offers or attempts so to do, shall be
punished on first conviction with imprisonment of either
description for a term which may extend to three years,
and with fine which may extend to two thousand rupees,
and, in the event of a second or subsequent conviction,
with imprisonment of either description for a term which
may extend to seven years, and also with fine which may
extend to five thousand rupees.
• 294. Obscene acts and songs.—Whoever, to
the annoyance of others—
• (a) does any obscene act in any public place,
or
• (b) sings, recites or utters any obscene song,
ballad or words, in or near any public place,
shall be punished with imprisonment of either
description for a term which may extend to
three months, or with fine, or with both.
• In the case, CJ Cockburn laid down the test of obscenity in
these words "I think the test of obscenity is this, whether the
tendency of the matter charged as obscenity is to deprave and
corrupt those whose minds are open to such immoral influences,
and into whose hands a publication of this sort may fall, it is quite
certain that it would suggest to the minds of the young of either
sex, or even to persons of more advanced years, thoughts of a
most impure and libidinous character."
• This Hicklin test has been uniformly applied in India. The
Indian Penal Code does not define the word "obscene"
and this delicate task of how to distinguish between that
which is artistic and that which is obscene has to be
performed by courts, and in the last resort by the Supreme
Court.
• ISSUE: Whether one should use Hicklin’s test or Community standard test to
determine and demarcate a line between what is artistic and obscene?
• The appellant is one of four partners of a firm which owns a book-stall in
Bombay named Happy book stall.
• The appellant and in partners were found with possession for the purpose
of sale copies of an obscene book called Lady Chatterley's Lover
(unexpurgated edition) which inter alia contained, obscene matter and
thereby were charged under section 292 of the IPC.
• https://www.youtube.com/watch?v=KH5AWN-c4b8
• On 12th December 1959, this book was sold to Ali Raza Sayeed
Hasan.
• The Magistrate held that the offending book was obscene for purposes
of the section 292 and convicted all the partners on the first count and
fined each of them Rupees 20 with one week's simple imprisonment in
default. The present appellant filed a revision in the High Court of
Bombay. The decision of the High Court was against him.
• He has now appealed to this Court by special leave and has
raised the issue of freedom of speech and expression
guaranteed by the nineteenth Article.
• The appellant based his argument on three legal grounds
which briefly are:
• (i) that s. 292 of the Indian Penal Code is void as being an
impermissible and vague restriction on the freedom of
speech and expression guaranteed by Art. 19 (1) (a) and is
not saved by cl. (2) of the same article;
• (ii) that even if s. 292, Indian Penal Code, be valid, the book
is not obscene if the section is properly construed and the
book as a whole is considered; and
• (iii) that the possession or sale to be punishable under the
section must be with the intention to corrupt the public in
general and the purchasers in particular.
• Appellant argued that that the Hicklin’s test must be modified in
two respects. The book is not necessarily obscene because there
is a word here or a word there, or a passage here and a
passage there which may be offensive to particularly sensitive
persons.
• Firstly, the overall effect of the book should be the test and
• Secondly, that the book should only be condemned if it has no
redeeming merit at all, for then it is "dirt for dirt's sake", or as
Mr. Justice Frankfurter put it in his inimitable way "dirt for
money's sake.
• Thirdly, that there must be an intention to corrupt the minds
of the people the book was being sold to because under the
first sub-section of s. 292
• Justice Hidayatullah:

• There is no loss to society if there was a message in the book. The

divagations with sex are not a legitimate embroidery but they are
the only attractions to the common man. When everything said in
its favor we find that in treating with sex the impugned portions
viewed separately and also in the setting of the whole book pass
the permissible limits judged of from our community standards and
as there is no social gain to us which can be said to preponderate,
we must hold the book to satisfy the test we have indicated above.
• No doubt this article guarantees complete freedom of speech and
expression but it also makes an exception in favor of existing laws which
impose restrictions on the exercise of the right in the interests of public
decency or morality.
• Speaking in terms of the Constitution it can hardly be claimed, that
obscenity which is offensive to modesty or decency is within the
constitutional protection given to free speech or expression, because the
article dealing with the right itself excludes it. That cherished right on
which our democracy rests is meant for the expression of free opinions
to change political or social conditions or for the advancement of human
knowledge. This freedom is subject to reasonable restrictions which may
be thought necessary in the interest of the general public and one such is
the interest of public decency and morality. Section 292, Indian Penal
Code, manifestly embodies such a restriction because the law against
obscenity, of course, correctly understood and applied, seeks no more
than to promote public decency and morality.
• The court stated that the Hicklin test was not pertaining just to certain
parts of the case here or there but it was related to the overall story.
• The court looking at the story of the book Lady Chatterley's Lover they
decided that the story did not show obscenity in parts but the overall story
had a very sexual atmosphere and hence could be classified as obscene.
• The court refuted third argument that there must be an intention to
corrupt the minds of the people the book was being sold to because
under the first sub-section of s. 292 because unlike some other
Sections of IPC which open with the words "whoever knowingly or
negligently etc.“, this Section does not make knowledge of
obscenity an ingredient of the offence. The prosecution need not
prove something which the law does not burden it with. The court
established a strict liability with respect to keeping obscene
material for sale with or without the knowledge of the obscenity.
• The Supreme Court of India held that the appellant was guilty under S
292 of the IPC as he was in possession for the purpose of sale
obscene material.
• The Canadian Supreme Court decision, Brody, Dansky,
Rubin v. The Queen (1962) in which the same book
Lady Chatterley’s Lover was ruled to be not
obscene.
• The Canadian Court noted that it "has none of the
characteristics that are often described in judgments
dealing with obscenity-dirt for dirt's sake, the leer of
the sensualist, depravity in the mind of an author with
an obsession for dirt, pornography, an appeal to a
prurient interest, etc."
• Facts: The appellant was the proprietor of Avenue Video
Boutique, a shop engaged in the sale and rental of hard core
pornographic video tapes, the sale of pornographic magazines,
and the sale of sexual paraphernalia. Convicted by the lower
Courts under S 163 (8) of the Canadian Criminal Code, which
defined obscenity as follows:
• “… any publication a dominant characteristic of which is the
undue exploitation of sex and any one or more of the
following subjects, namely, crime, horror, cruelty and
violence, shall be deemed to be obscene.”
• “The Hicklin philosophy posits that explicit sexual depictions,
particularly outside the sanctioned contexts of marriage and
procreation, threatened the morals or fabric of society. (C
Beckton, Freedom of Expression, full citation at p 492 in R v
Butler). In this sense, its dominant, if not exclusive, purpose was
to advance a particular conception of morality. Any deviation
from such morality was considered to be inherently undesirable,
independently of any harm to society.”
• “The focus on the ‘corruption of morals’ in the earlier legislation
[referring to the Hicklin test] grew out of the English obscenity
law which made the court the ‘guardian of public morals’.
• “Pornography may be divided into three categories:
• (1) explicit sex with violence,
• (2) explicit sex without violence but which subjects people to
degrading and dehumanising treatment,
• (3) explicit sex without either of these features.”

• Category (1) will generally constitute undue exploitation, and

category (2) may be undue if the risk of harm is substantial.
Category (3) might be undue if it involves children.
• “The courts must determine as best they can what the community
would tolerate others being exposed to on the basis of the degree of
harm that may flow from such exposure. Harm in this context means
that it predisposes persons to act in an anti-social manner as, for
example, the physical or mental mistreatment of women by men, or,
what is perhaps debatable, the reverse. Anti-social conduct for this
purpose is conduct which society formally recognizes as incompatible
with its proper functioning. … If material is not obscene under this
framework, it does not become so by reason of the person to whom it
is or may be shown or exposed not by reason of the place or manner
in which it is shown…. The portrayal of sex must then be viewed in
context to determining whether that is the dominant theme of the
work as a whole... The court must determine whether the sexually
explicit material when viewed in the context of the whole work would
be tolerated by the community as a whole.”
• “To impose a certain standard of public and sexual morality,
solely because it reflects the conventions of a given community,
is inimical to the exercise and enjoyment of individual freedoms,
which form the basis of our social contract… The prevention of
“dirt for dirt’s sake” is not a legitimate objective which would
justify the violation of one of the most fundamental freedoms
enshrined in the Charter. … In my view, however, the overriding
objective of s. 163 is not moral disapprobation but the
avoidance of harm to society.”
• The court’s position on obscenity and S 292 of the IPC
has changed ever since this judgement.
• The court has now discarded the Hicklin test that was
used by it earlier and in its place uses the Community
Standards test.
• In the Aveek Sarkar case, the community standards
were used by the Supreme Court.
• The community standards test is much more adaptive
test of obscenity that states that if it is acceptable by
the society in general then it must be accepted by the
court too.
• Boris Becker, a renowned tennis played posed nude with his dark-skinned
fiancée, Barbara Feltus, who is an actress by profession. This photograph
was published in a German magazine called, “Stern” with the intent to portray the
couple as a protestor of the practice of Apartheid as well as to signify a choice of
love over hatred.
• “Sports World”, a widely circulated magazine and “Anand Bazar Patrika”,
a newspaper having wide circulation in Kolkata republished the article
with the photograph.
• A practicing lawyer at Alipore Court, Kolkata, claiming to be a regular reader
of Sports World as well as Anand Bazar Patrika filed a complaint under
section 292 of Indian Penal Code against the Appellants i.e. the Editor,
Printer and Publisher of the newspaper as well as the Editor of the Sports
World, former Captain of Indian Cricket Team, late Mansoor Ali Khan of
Pataudi, before the Sub-Divisional Magistrate at Alipore with the say that such
nude photographs would corrupt young minds, both children and youth of
this country and is against the cultural and moral values of our society.
• The appellant accused the respondents under section 292 of
IPC as well as the section 4 of Indecent Representation of
Women (Prohibition) Act since he vividly believed that the
photograph prima facie gives a sexual titillation and its
impact is moral degradation and would also encourage the
people to commit sexual offences.
• The accused persons filed an application and argued for
dropping the proceedings while arguing that there was no
illegality in reproducing the news item and photograph as
appeared in “Stern” published in Germany as the same
magazine was never banned in India and was never
considered as ‘obscene’, especially when section 79 of IPC
states that ‘nothing is an offence which is done by any person
who is justified by law or who by reason of a mistake of fact
and not reason of a mistake of law in good faith, believes
himself to be justified by law, in doing it.
• The trial Court dismissed the contentions of the accused persons and
held that they would be put to trial for the offence punishable under
section 292 IPC and section 4 of the Indecent Representation of
Women (prohibition) Act, 1986.
• The accused filed for Criminal Revision before the High Court of
Calcutta under Section 482 Cr.P.C. so as to quash the proceedings
pending before the Judicial Magistrate Court, Alipore.
• In the High Court it was contended that the Magistrate had not
properly appreciated the fact that there was no ban in importing
the German sports magazine “Stern” into India and hence the
reproduction of any picture would fall within the general exception
contained in Section 79 IPC.
• It was also pointed out that the picture only had the intent to
demonstrate the protest lodged by Boris Becker as well as his
fiancée against apartheid and that nudity per se cannot be termed
as obscenity.
• The High Court, however, did not appreciate all those contentions
and declined to quash the proceedings under Section 483 Cr.P.C.
• The Hicklin’s test of obscenity examined whether the tendency
of the material is to deprave and corrupt minds that are open
to immoral influences, and into whose hands the material
may fall.
• This test allowed the material to be judged on the basis of
isolated parts of the work by their influence on the most
susceptible readers.
• While the Community Standards Test of obscenity examined
while viewing the said picture in the background of which it
was shown, and the message it conveyed to the public and
the world at large.
• The Supreme Court held that a photograph cannot per se be called
obscene unless it has the tendency to arouse feeling or revealing an overt
sexual desire.
• Since the cover story of the Magazine carried the title, “posing nude, dropping of
harassment, battling racism in Germany” it was clear that the motive of such a
photograph was against Apartheid.
• It also held that since the breast of Barbara Fultus were fully covered with
the arm of Boris Becker the photograph was semi-nude and had no
tendency to deprave or corrupt the minds of people in whose hands the
magazine Sports World or Anandabazar Patrika would fall.
• The Court held that the photograph was not obscene within the meaning of
Section 292 of the IPC.
• It did not excite sexual passion or tended to deprave or corrupt the minds of
people in whose hands the magazine or newspaper may have fallen.
• Further, the photograph and the article in which it appeared conveys the
message of racial equality and promoted love and marriage between
persons of different racial backgrounds. Accordingly, the Court found no
offense under Section 292 of the IPC or Section 4 of the Indecent
Representation of Women (Prohibition) Act, 1986.
• The Petitioners are a young couple, aged 28 and 23 years, who solemnized
their marriage on 4th September 2008 at the Arya Samaj Mandir, Delhi
apparently without the knowledge of their respective parents.
• They sought the of a lawyer to get their marriage registered under the
Hindu Marriage Act, 1955.
• The lawyer asked them to come to the Dwarka Court Complex on 18th
September 2008 apparently to get some paper work done in regard to the
registration of their marriage.
• While they were waiting under the Metro Station near the court complex at
around 3 pm in the afternoon, an Assistant Sub-Inspector (ASI) of Police
Vidyadhar Singh (attached to the Police Station Dwarka along with a
constable Roshan Lal) accosted them and allegedly told them that he knew
what they were up to.
• According to the FIR which was registered at the instance of the Vidhyadhar
Singh, he found the two Petitioners sitting in an objectionable position
near Metro Pillar No.1140 and were kissing each other. As a result of
which the passersby were feeling bad.
• The Delhi High Court has stayed criminal proceedings against a
couple wondering how and why an "expression of love by a
young married couple" in this case allegedly by stealing
kisses in public should attract the charge of obscenity and
trigger the coercive process of law,"
• The FIR doesn't make a case for offence under Section 294
(obscenity) read with 34 IPC. What is striking is that despite the
Sub-inspector (SI) finding on enquiry that the two petitioners were
husband and wife living in the same place, he thought it fit to go
ahead and register an FIR for an offence under Sections 294
read with 34 IPC.
• Although the FIR refers to passer-byes being annoyed not a single
name of any passer-by is found mentioned.
• SEE KISS OF LOVE PROTEST
http://www.livemint.com/Opinion/5DKL9wuITBg8LosTQFFX8O/Is-
kissing-in-public-an-obscene-act.html
• The last two decades or so have been very productive for the moral police.
From love jihad to Valentine’s Day vandalisms, to disruptions of film shows
and art exhibitions, they have, in this relatively short span, built up an
illustrious record of hooliganism and criminal intimidation aimed at stamping
out from public view any and all displays of romantic or sexual love
between free, private individuals as well as any display of individualism
that might challenge the self-appointed guardians of national culture and
religious pride.
• But why is it that we never, ever, see the police—who are mandated to
uphold the Constitution—stand up for the rights of the individual citizen
against the depredations of the moral police?
• The provision of the law that the moral police feed on is Section 294 of
the Indian Penal Code (IPC), What is interesting is that the most critical
element of this provision, obscenity, is not defined. Which means that
whether or not a couple kissing in a public place is an “obscene act” is
entirely a matter of interpretation.