Several comments were made to the post “Does consensual sex based on false promise amount to rape?”. Recently, a detailed critique was posted by Ms. Sunanda Bharti (see comment section of the previous post). I welcome her and others to the discussion and request that she (and other readers) not take offense to my comments below if they appear a bit testy. I believe most of the points she has raised have been addressed in that blog and in other comments but nevertheless set forth here, at the risk of repetition, a specific response to her contentions.
Ms. Bharti says that the IPC does not define consent in very clear terms. This lack of definition of consent in ‘clear terms’ in section 90 is more than made up by the provisions of section 375: those are clear, concerned specifically with rape and must, applying the rules of interpretation, prevail over the general definition of consent in section 90. In regard to misconception of fact in a fully conscious state of mind and in the absence of fear, the only instance stated therein that constitutes rape is when the woman gives consent to a man wrongly believing him to be her husband.
Next, it is asked what is wrong with an enlarged interpretation if it is to fill up a ‘lacuna’ in the IPC. The problem here is that filling up ‘lacunae’ in the law is the job of the legislature, not the courts. These ‘lacunae’ are not necessarily inadvertent legislative omissions. They can equally well be by design, deliberately excluded because the legislature and society by implication does not consider those actions to constitute crime. If one concedes these arguments, there is no difference between what the law says and what it ought to say, judges are not really bound to follow firm rules of statutory interpretation but are free to get creative and give new meanings that promote their own notions of ‘justice’ in any case. Words would then mean little, enactments are easily whittled down of substance, societal preferences would hold little sanctity, citizens’ recourse to authority would have uncertain outcome and what we call ‘justice’, reduced to a product of the sensibilities of the presiding judge: in short, the rule of men, not law. Such a view is not only dangerous but can cut both ways – if it can be used to promote women’s rights, it can be equally well used to restrict them another day. Sure as highlighted, the vicissitudes of legislative passage are well-known but that indecisiveness of society is the price to pay for protection from tyranny. Being a democracy, one must accept that the wheels of change roll slowly, persuaded by the soft power of reason flowing from the opinion-maker’s pen rather than the heavy hand bringing down the gavel.
It is said that every possible scenario cannot be taken into account by the legislature. There are two answers to that. The first is that rule of law means equal justice under law for all, not justice tailored on a case-by-case basis; one does not have to take every scenario into account. All that is required of the legislature and the superior courts is for certain principles to be laid down which lower courts can apply uniformly and consistently to every situation to determine the outcome. As Cardozo puts it, “The recognition of [judicial] power and duty to shape the law in conformity with the customary morality, is something far removed from the destruction of all rules and the substitution of the individual sense of justice, the arbitrium boni viri. That might result in a benevolent despotism if the judges were benevolent men. It would put an end to the reign of law”. The other part of the answer is that that is precisely why we have a legislature to update laws all the time rather than a one-time event like the convening of a constituent assembly which could simply produce a document and be disbanded for good when its work was done. The end of law is the promotion of justice no doubt and bridging the gap between those two is a continuous exercise which is what the legislature is supposed to do. To put it in a nutshell, these are the classic arguments advanced in favor of judicial activism and must therefore bear with the standard criticisms that the approach is vulnerable to.
Ms. Bharti argues that no ‘meeting of minds’ exists, hence no valid consent. This definition of consent does not change the question we are grappling with, i.e., what is the scope of the ‘meeting of minds’ that we are concerned about for the purpose of this provision? Related to the same point, she reiterates her notion of rape that it need not involve physical violence at all. And so, the definition of rape also includes consensual sex performed as a pleasure activity but transformed into a defiled one post facto because of a false promise. These arguments have been discussed in detail in the previous post (and comments therein), so my comments here are really redundant. Rape, in this view, requires no real experience of actual trauma, only the recollection of one. A perfectly pleasurable sexual escapade, soured by later events, can instantly transmogrify into a painful, horrific and worse, criminal act of rape! Agreed that minus the promise of marriage, the woman probably would not have consented to sex but the same thing would however be equally true if he had promised her something other than marriage – suppose he had said he would get her a car but failed to deliver or said he belonged to her caste but was really from another or that he would treat her like a queen. In being less than upfront about his caste, maybe he was thinking all along, “I have duped her into believing that I am from her caste but maybe when she gets to know me better, I can reveal the truth and she will be more willing to see the irrelevance of it”. But this would be clearly impermissible under this newly minted feminist jurisprudence – consensual pre-/extramarital sexual relationships between perfectly willing, single adults would have legal implications. The dating game would now have to adhere to the straightforward rules of old-fashioned commerce: the sex-seeker must reveal all his intentions and ‘business’ offers upfront through a declaration of truth and nothing but the truth in exchange for the sex-giver acceding to his demand in good faith, to be followed by consummation at which point, the binding nature of the former’s obligations are established. Weaving fantasy would have to be forbidden, words would have to be weighed carefully and promises spelt out would have to be kept or else, god forbid, a break-up ensues and a bitter one at that, it is payback time in court! Rape would thus be a convenient weapon of vengeance for the betrayed, the jilted and even the otherwise broken-hearted. This expanded definition, achieved through judicial sleight of hand is built on a legal foundation of quicksand, is nebulous at best, seeks to criminalize an unacceptably broad range of personal conduct through the back door and thereby casts an icy pall over a large domain of individual liberty in a free society, all done under the politically correct guise of protecting the weak and disempowered. Needless to add, I reject it categorically.
It is argued that a woman expects not sympathy but that the accused be punished. Meeting individual expectations is not the role of the criminal justice system; rather, meeting society’s expectation of justice is and the two may not coincide. A final point made is that the woman did suffer injustice, so the petition is not frivolous. Perhaps she did but no prima facie case is made out for rape, and my contention is only that this particular charge and the like are frivolous. Yes, not all of us are born with a silver spoon or manage to get into Harvard or IIT; many have had failed relationships, had their trust betrayed by friends, had colleagues spike their promotions and so forth – life is not fair but not all the injustices of life are necessarily criminal offenses or even otherwise actionable by the state. That is why people talk of ‘learning through the experiences of life’, their reference being to caveat emptor, the one rule that applies to life as much as to commerce and must govern our actions at least where we are on our own.
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