0

Nimeshbhai Bharatbhai Desai v. State of Gujarat R/Criminal Misc. Application Nos. 26957, 24342 of 2017 and R/Special Criminal Application No. 7083 of 2017

|
Reading Time: 8 minutes

On the 2nd of April, 2018, a single judge bench of the Gujarat High Court decided whether a wife can prosecute her husband for unnatural sex acts under S.377 of the Indian Penal Code, 1860 (IPC). In addition the court also decided whether with regard to a heterosexual couple, fellatio and cunnilingus amount to unnatural sex acts. Summarily, the court concluded that though a wife can prosecute a husband under 377 for unnatural sex acts, fellatio and cunnilingus do not fall in that category. Seemingly, the court based its reasoning on penile penetration of the anus and concluded that apart from sodomy, bestiality and buggery, no other sex acts in heterosexual sex amount to unnatural sex. In this blog, I will make 5 points: 1. The Koushal case may have left it open for future courts to decide the ambit of unnatural offences, including fellatio and cunnilingus, which are pertinent for this case; 2. Even so, the court deviates from the cases it cites; 3. The Koushal case arguably does not criminalize all instance of non-heterosexual sex among consenting adults; 4. The Gujarat case is a live example of the discriminatory application of 377; and 5. The decision has an impact on the maximum punishment that the husband faces.

Facts of the Case

Nikita and Nimeshbhai, two doctors, married each other in May, 2014. Their marriage began to deteriorate after six months, as per the first information report (FIR) filed by the wife against her husband and her in-laws. Her husband would force her to have oral sex with him (fellatio) and also forcibly perform oral sex upon her (cunnilingus). She alleged that he would force her to have sexual intercourse with him i.e. he raped her vaginally. In her FIR, she did not make an allegation of forced anal sex. Accordingly, she lodged an FIR under Ss. 377 (unnatural offences), 376 (punishment for rape) and 498-A (cruelty) of the IPC. At the time of the hearing of this case, the police had not completed investigation into the allegations. The counsel for the husband and in-laws filed a criminal miscellaneous application in the interim praying that the court quash the FIR. The court quashed the FIR against the in-laws in toto whereas with respect to the husband, the court quashed the charges of 375 and 377. Finally, the court recommended that a charge of 354(outraging the modesty of women) be added to the FIR. Before delving into the points, I make a preliminary observation about the marital rape discussion in this case.

Alleged Acts Not Rape by Fact of Marriage—Marital Rape Discussion

As per the amended S.375 of the IPC, non-consensual fellatio and cunnilingus constitute rape. However, as per Exception 2 of the amended section, sex acts by a man with his own wife (18 years or older) do not constitute rape. In this case, the acts in question were sex acts and performed by a husband against his wife. Though these sex acts would have ordinarily constituted rape, the court observed, the fact of marriage takes these acts out of that purview:

“In the case at hand, the acts complained or alleged would definitely amount to rape within the meaning of section 375 of the IPC, but it is the lawful marriage between the accused and the first informant that saves the situation for the husband. Section 375 does not recognize the concept of marital rape. If the complainant is a legally wedded wife of the accused, the sexual intercourse with her or any sexual acts by accused would not constitute an offence of rape even if it was by force, violence or against her wishes.” [para 15].

However, the court then proceeded to decide whether these sex acts constitute acts, ‘against the order of nature’ for which there is no marital exception.[1] This is how the discussion shifted to 377. Incidentally, the High Court of Tripura has found in an analogous fact situation in 2017 that fellatio is triable under 377.[2]

377 of the Indian Penal Code

377 reads as under:

  1. 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 court begins with a list of potential activities that may be against the order of nature. Notably, this list seems illustrative because the court states that unnatural sex can take various forms  “such as” sodomy, bestiality, buggery, maschosim, sadism, exhbitisionism, and fetishism.  However, through the judgment the court does not seem to take note of any other kind of sex which may fall under the category of unnatural. Arguably, the court seems to understand carnal intercourse as sexual intercourse involving a penis and penetration as an act that can be accomplished only when the penis penetrates the anus. This conclusion further strengthened by the fact that they do not find fellatio an act of unnatural sex because though it does involve the penis, there is no penetration in the anus. By extension, cunnilingus is not unnatural because there is no penis involved. Accordingly, the court concludes that apart from sodomy, bestiality and buggery, no other sexual acts mentioned on their list classifies as unnatural act [paras 48, 50-51]. The failure of the court to expand the list of unnatural acts shines a light on its narrow understanding of unnatural. However, this is not to argue that the list of unnatural acts must be expanded. This is just to draw attention to the fact that according to the court, unnatural sex acts are those which involve penile penetration into the anus of either a man, woman, or beast.

  1. Suresh Koushal May Have Left it Open for the Court to Conclude that Fellatio and Cunnilingus is Natural

In the case of Suresh Kumar Koushal v. Naz Foundation[3], the Supreme Court was called upon to decide the validity of S.377. The Supreme Court had, in that case, found that S.377 is indeed a valid law.  In its judgment, the Supreme Court cited the past cases involving 377 which all involved non-consensual sexual acts and some of which also involved penile penetration into orifices other than the anus (mouth, nose of animal etc.) However, ultimately, court found itself unable to formulate of list of sexual activities that would be unnatural per se [para 38, page 77, SC version]. Now, there are two ways of looking at what the Supreme Court did in that case. The first way is that whatever else may be unnatural, the Supreme Court certainly thought that penile penetration into the anus, nose, mouth etc. was unnatural., at least when effected non- consensually (which fact coincides with our present case). The second is to conclude that all this previous case law cited by the Supreme Court has no bearing on what is natural and unnatural—that it was merely making a note of the judicial history of 377 without expressly endorsing certain acts as unnatural. This second conclusion may be the stronger one especially because the Supreme Court stated in Koushal that: “However, from these cases no uniform test can be culled out to classify acts as “carnal intercourse against the order of nature”. In our opinion the acts which fall within the ambit of the section can only be determined with reference to the act itself and the circumstances in which it is executed.” [para 38, page 77, SC version]. Therefore, prima facie, this judgment is not in violation of Suresh Koushal as that leaves it open for future courts to decide what is natural and what is not.

  1. Court Deviates from Cases it Cites

However, oddly, the judgments that the Gujarat High Court cites i.e. Brother Anthony v. State[4] and Khandu v. Emperor[5] involve the case of a penile penetration into orifices other than the anus. In both these cases, the accused was found guilty of 377. The court does not explain this deviation though technically it is not bound by these cases as they were high court cases.

  1. Koushal Arguably Does Not Criminalize All Instances of Non-Heterosexual Sex

Arguably, the Supreme Court has not found that 377 criminalizes all kinds of sexual activities between non-heterosexual adults, in the Koushal case. Building on the reasoning in point 1 above, the following conclusions emerge from the Koushal decision:

  1. The Supreme Court does not have a list of unnatural and natural sex acts and it asserts that the 377 categorizes people on the basis of sex acts, and not sexual orientation (the former being criminal and the latter, not: paras 38 and 42, SC version.
  2. The court is apprehensive to conclude from markedly coercive cases of sex it cites (involving penile penetration in a bodily orifice other than the vagina) that were such cases to come up in the future and involved consenting adults, a term that is sex neutral, an offence under 377 would be made out.
  3. The Supreme Court categorically states that, “It is relevant to mention here that the Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.” [para 38, page 77, SC version].

Therefore, these 3 points taken together allow one to argue that not all cases of consensual sex between adults, regardless of sexual orientation and gender identity constitute an offence under S.377. In other words, there may be some instances of homosexual sex which may not be violative of 377, per the force of this judgment.

     4. This Case is an Instance of Discriminatory Application of 377

Here, the Gujarat High Court categorically finds that 377, “penalizes sexual activities between the homosexuals” [para 34]. By doing so, this judgment not only arguably fails to correctly follow the Koushal judgment by which it is bound by force of Article 141 of the constitution[6], it posits itself as an instance of discriminatory application of S.377.

In this judgment, the Gujarat High Court has found that fellatio and cunnilingus are not unnatural sex acts as between heterosexual couples. Because of the wording of 377, the conclusion would have been the same regardless of whether consent was involved. However, since the amended rape provisions will cover non-consensual cases of fellatio and cunnilingus at least between the non married heterosexual couples, for the purpose of our analysis we will compare these two acts performed consensually, once by a non-heterosexual couple, and once by a heterosexual couple. The thrust of this judgment is that the heterosexual couple will not be found in violation of 377 whereas the non-heterosexual couple will be found guilty in violation of 377 because 377, “penalizes sexual activities between the homosexuals” [para 34]. In other words, if a man has consensual oral sex with a woman, neither would be guilty under 377, but if a man performs the same acts with another man consensually, both will be guilty under 377. In other words, 377 will operate differently depending only the sex of the sexual partner. Therefore, this decision advances an interpretation of 377 which mandates a discrimination based only on sex, a clear violation of Articles 14 and 15 of the constitution

      5. Effect of the Judgment on Maximum Sentence

The different crimes alleged in the FIR attract the following sentences:

  1. 376: 7/10 years or life (at least for the facts at hand)
  2. 377: 10 years to life, and fine.
  3. 498-A: 3 years and fine.
  4. 354: 2 years, or fine or both.

Therefore, it is evident that by quashing the FIR with respect to the husband as regards 376 and 377, the maximum potential sentence that can be awarded to the husband falls drastically from life sentence to 2-3 years. This is a major devaluing of a criminal activity based entirely on the fact of marriage alone.

 

I am thankful to Upasana Garnaik, Arushi Garg and Rishika Sahgal for illuminating discussions around this case which enhance the quality of this blog. Upasana Garnaik is an advocate in India. Arushi Garg is a doctoral (law) student at the University of Oxford whereas Rishika Sahgal is pursuing a MPhil (law) at the University of Oxford.

[1] I am grateful to Upasana Garnaik for pointing out that though certain acts may not be rape, they may still be unnatural for the purpose of an inquiry under 377.

[2] Paramita Majumder (Datta) and Ors. v. Biswanath Datta and Ors. Crl. Rev. Pet. Nos. 80/2013 and 1/2013.

[3] Civil Appeal No, 10972/2013.

[4] 1992 CrLJ 1352.

[5] AIR 1934 Lah 261.

[6] Constitution of India, 1950. Article 141 states as follows:

“141. Law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be binding on all courts within the territory of India.”

0

State of Gujarat v. Kirankumar Rameshbhai Devmani Civil Appeal No. 7208/2015

|
Reading Time: 4 minutes

On the 3rd of May, 2018, a division bench of the Supreme Court dismissed an appeal filed by the maker of a Gujarati film on the topic of homosexuality. In this post, we will investigate whether the reasons for this dismissal were correct in law. I will argue that they were not. More specifically, we will ask whether a change of the substantive law on a particular matter during the pendency of appeal should change the substantive law governing that matter? This question will also be answered in the negative, with some qualifications.

HISTORY OF LITIGATION OF THE FILM
The film was called Meghdhanushya and had been the subject of litigation at the Gujarat High Court as well. At the High Court, the filmmaker, who was also the producer of the film had challenged the denial of entertainment tax exemption to the film. On the 28th of February, 2014, the High Court found the denial to be illegal and unconstitutional, and ordered that the tax exemption be offered to the film, and a certificate issued to that effect by the office of the Commissioner of Entertainment Tax. I have summarized the reasoning of the High Court with arguments from both the sides in a previous post.

Note that the High Court battle was not about the whether the film could be released. The battle was about tax exemption. The film was always eligible for release. In fact, the State of Gujarat had argued, even if unsuccessfully, at the High Court level that the filmmaker was free to release the film without the tax exemption.[1]

Following the High Court decision, the State of Gujarat filed a petition before the Supreme Court seeking its leave to appeal the High Court decision. This petition was first called up for hearing on the 15th of April, 2014. On that date, the Supreme Court also stayed the High Court order. Permission to appeal was granted to the State of Gujarat on the 15th of September, 2015.

GROUNDS OF APPEAL
To be sure, the grounds on which the appeal was filed are not publicly available. However, without more, and anything to the contrary to suggest otherwise, the appeal was filed arguably to persuade the Supreme Court that the correct interpretation of the Gujarat tax exemption policy required denial of the entertainment tax exemption to the film. The State of Gujarat framed a scheme dated June 8, 1999 exempting all Gujarati colour films produced after April 1, 1997 from entertainment tax. According to para 4 of the scheme, films could be denied exemption only if they, depicted “evil customs, blind faith, sati, dowry, and such social evils and those which are against national unity.” Presumably, the counsel for the State of Gujarat sought to argue that the film in question fell under one of the above mentioned categories and therefore was rightly denied exemption. However, something seems to have changed during the course of those arguments, if one looks at the 3rd May order.

CHANGE IN SUBSTANTIVE LAW DURING PENDING APPEAL

According to the 3rd May order, the Gujarat counsel was arguing that the question of whether the film can be exempt from tax will now be considered under the Goods and Services Tax (GST) regime. However, at the time when the film was denied the exemption, the GST regime existed neither centrally nor at the State level. A key rule of interpretation is that the substantive law at the time of the cause of action should govern the matter. The philosophical foundations of this rule lie in fairness—no one should be subject to a law that did not exist at the time they performed an act, especially when it effects obligations and duties.[2] In fact, a changed substantive law does not have a retrospective application until it is expressly stated so in the legislation, or the changed law should by necessary implication have a retrospective effect.[3] Neither is true in our case since both the Central and State GSTs have neither stated that they will have retrospective effect nor is such a construction required by necessary implication. The GST was introduced in 2017 at both the central level and in Gujarat whereas the cause of action arose when the exemption was first denied by the Entertainment Tax Commissioner in Gujarat in April, 2013. In fact, Vepa Sarathi has expressly stated that a fiscal statue must expressly be made retrospective.[4] In the absence of any such declaration by either the Central or the State government, our case is further strengthened that the GST regime will govern future questions of tax exemption but not the present case. This conclusion is further strengthened by S. 174(f) of the Gujarat Goods and Services Tax Act, 2017 which states that cases instituted prior to the Act will be decided under the repealed laws. Therefore, according to this rule, the 1999 policy, which governed entertainment tax exemption question, when the matter arose in Gujarat, should govern the decision all through its very end in the Supreme Court.

Even if the substantive law has changed during the pendency of appeal, the appeal will be governed by the laws that existed when the cause of action arose (April, 2013). Therefore, this case should have been governed by the 1999 scheme and the judges ought to have heard it on that basis. In other words, the appeal at the Supreme Court level should have answered the question whether the film qualifies for the tax exemption under the 1999 scheme? However, as per the 3rd May judgment, the court dismissed the appeal because the taxing statute has since changed. This it was not entitled to do. By dismissing the appeal on an incorrect legal standard, the judgment has arguably set the stage for a review on grounds of a patent error of law.

[1] The film has an “A” certificate from the Central Board of Film Certification in India (Censor Board).

[2] Nova constitutio futuris formam imponere debet, non praeteritis.

[3] Vepa Sarathi, Interpretation of Statutes 466 (Eastern Book Company 2003).

[4] Vepa Sarathi, Interpretation of Statutes 466 (Eastern Book Company).