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15 March 2016 Editorial


15 MARCH 2016

Why marital rape must be a crime 

The question whether marital rape should be treated as a criminal offence has once again arisen after Union Minister for Women and Child Development Maneka Gandhi repeated the government’s stand in a written reply in Parliament. She said, “The concept of marital rape as understood internationally cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs [and the] mindset of the society to treat the marriage as a sacrament.” This controversial formulation must be familiar to those calling for marital rape to be criminalised and those opposing it on the ground that it would ruin the institution of marriage. The argument that there is too little education and too many customs and beliefs in Indian society is often held up to stall legal reforms. The principal objection to the criminalisation of rape within a subsisting marriage is rooted in western tradition too. It originates in the common law principle of marriage as ‘coverture’, the idea that the woman is always under the husband’s protection and authority. In England, Matthew Hale’s 1736 dictum that a man can never be guilty of raping 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”, has been abandoned in progressive jurisdictions. 

The Justice J.S. Verma committee, which recommended sweeping changes in the law relating to offences against women, called for marital rape to be made an offence. This was not implemented. The present Indian law exempts non-consensual sex between a husband and wife, not being less than 15 years of age, from being charged with rape. However, by another provision it makes rape of a wife who is living separately a criminal offence. The age limit of 15 years above which marital rape is not an offence is inherently problematic, as normally sex with a girl up to the age of 18 is an offence regardless of consent. The exemption given to marital rape, as Justice Verma noted, “stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands”. Marital rape ought to be a crime and not a concept. Of course, there will be objections such as a perceived threat to the integrity of the marital union and the possibility of misuse of the penal provisions. It is not really true that the private or domestic domain has always been outside the purview of law. The law against domestic violence already covers both physical and sexual abuse as grounds for the legal system to intervene. It is difficult to argue that a complaint of marital rape will ruin a marriage, while a complaint of domestic violence against a spouse will not. It has long been time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status.

Ensure a credible clean-up in Kodaikanal 

The settlement in the Kodaikanal mercury poisoning case, which came to light 15 years ago after the release of contaminated waste materials into the environment, brings partial closure to a long-running struggle between the community and a major industrial corporation. Hindustan Unilever Limited has come to an agreement with 591 former workers and their families for payment of ex gratia amounts towards livelihood and skill enhancement. The Madras High Court has taken the settlement on record, and the disbursal of the fund should bring some succour to those who suffered various health setbacks that they believe are related to mercury exposure. The closure is the culmination of a sustained campaign by environmental activists and concerned citizens for these 15 years, which got global attention after a rap song on the plight of those affected went viral on the Internet. The HUL case highlights the often neglected questions of occupational health interests of workers, and poor diligence shown by governments in allowing industries that handle toxic materials without satisfactory management processes. Many workers in Kodaikanal were claiming for over a decade that they fell ill after working in the thermometer factory, but received little government support. That is unsurprising, considering that occupational health receives low priority in policymaking, while environmental concerns are counterposed to rapid growth of industry as an obstacle. The Kodaikanal story should convince Environment Minister Prakash Javadekar, who said his Ministry would no longer be a “roadblock”, that a culture of superficiality in making impact assessments is unsustainable, even counterproductive.

There is also the unresolved issue of the clean-up of the unit, of environmental remediation and the standards to be adopted. The Tamil Nadu Pollution Control Board has to ensure that the decontamination meets the highest standards adopted anywhere, and in any case, not less than the new standards being considered by the Environment Ministry as part of its guidelines for contaminated sites. While many national institutions have gone into the issue of fixing a remediation standard, there appears to be clear divergence between what the Ministry’s draft of 2015 proposes — a soil clean-up standard of 6.6 mg per kg for residential purposes — and the much higher quantum of 20 mg/kg that is under consideration by the pollution control authorities. Therefore, it is necessary to conduct a fresh and transparent review of the ecological issues arising from any mercury residues in Kodaikanal, an important segment of the southern Western Ghats, before a decontamination plan is finalised. The pollution issue in the hill town arose from the open sale of 5.3 tonnes of mercury-contaminated scrap from the factory to a dealer; several tonnes of scrap was moved by the company from its yard in 2001. Government and industry should now endeavour to regain public trust, and this is possible only through credible scientific scrutiny and community participation. Crippling pollution cannot be justified as a small negative externality that must be endured for short-term growth.

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