December 2, 2020

CONSTITUTIONAL VALIDITY OF SECTION 375 (6) OF IPC, 1860

Rape u/s 376(6) of the Indian Penal Code, 1860 states:

“A man is said to commit “rape” if he under the circumstances has sexual intercourse with a woman with or without her consent, when she is under eighteen years of age”

Introduction

Where a person complains of the deprivation of his life or personal liberty, the court in exercise of its constitutional power of judicial review has to decide whether there is a law authorizing such a deprivation and whether in the case, the procedure prescribed by such law is reasonable, fair and just and not arbitrary, whimsical and fanciful.[[1]]

Thus, this article is going to challenge section 375(6) of the IPC as being unconstitutional on the grounds that it contravenes with the fundamental rights, specified in Part III of the Constitution.[[2]] The constitutionality of section 375(6) which deprives the applicant of its fundamental rights is that:

  1. It contravenes the fundamental rights enshrined u/a 14, 19, 21.
  2. It is unfair and unreasonable.

Violative of Article 14

The concept of equality has been held basic to the rule of law and is regarded as the most fundamental postulate of republicanism. In the case of Indira Nehru Gandhi v. Raj Narain the Supreme Court has held that the right to equality conferred by article 14 is a basic structure of the Constitution and an essential feature of democracy. Therefore, the range and scope of Article 14 have been widened by a process of judicial interpretation so that the right to equality now not only means that the right not to be discriminated against but also protection against any arbitrary or irrational act of the State. [[3]]

Arbitrariness being opposed to reasonableness is an antithesis to law. Arbitrary action is described as one that is irrational and not based on sound reason or as one that is unreasonable. Thus, the court in the leading judgment of R.K Dalmia v. Justice Tendulkar laid down the following tests to determine the question of the reasonableness of a classification. [[4]] These have been held to be the central tests for permissible classification. [[5]] These are:

1. The classification must be founded on an intelligible differentia which distinguishes persons and things that are grouped together from others left out of the group.

2. The differentia must have a rational nexus to the object sought to be achieved by the statute in question.

Forthwith, if one examines section 375(6) of the IPC on the ground of the first test laid by the court to determine the question of the reasonableness of the classification, then one can easily ratiocinate that it is devoid of intelligible differentia

Moreover, section 375 defines the offence of “rape” which according to “Black’s Law Dictionary” is defined as sexual intercourse with a woman or girl forcefully and against her will. In contrary to this, section 375(6) states that “a man is said to commit rape when he has sexual intercourse with a women with or without her consent when she is less than eighteen years of age.” This paradoxical description delineated u/s 375 construes that a minor girl who is older than 12 years of age and has sufficient understanding to commit a criminal act and has complete knowledge of its consequences cannot give consent while in a sexual relationship with a man and if she is consenting to it, then too she is not acquiescently doing so as she does not acquires sufficient understanding of knowing the consequences of her act.

Therefore, section 375(6) of the IPC is violative of Article 14’s test of reasonable classification which makes it an antithesis to the rule of law.

Violative of Article 19

Article 19(1)(d) guarantees the right to move freely not merely from one state to another state but also from one place to another, within the state. [[6]] In this regard, it has already been pointed out in “A.K Gopalan v. State Of Madras” that article 10 and articles 21-22 forms two watertight compartments no longer holds the field [[7]] and that, accordingly the reasonableness of a penal law can be tested with the reference of Article 19, as has been assumed in some cases [[8]] subsequent to the observation in case of “R.C Cooper v. U.O.I”. Therefore, the reasonableness of a penal law coming under article 21 can be examined with reference to article 19, only if the expression “move freely throughout the territory of India” in article 19(1)(d) compromises the personal liberty which is sought to be safeguard by article 21.

Now, it can been ascertained that section 375(6) violates the right guaranteed by Article 19(1)(d) of the Constitution as section 375(6) mandates the courts to presume that the applicant accused under this section has ommitted the offence of rape even if there occurs to be consent and understanding of consequences on part of the minor girl aged between 12 to 18 years of age.

Assuming this fact, the court of the law becomes duty-bound to penalize the accused for the act and curbing his right to liberty enshrined under Article 19(1)(d) of the Constitution.

Therefore, section 375(6) contravenes the fundamental rights guaranteed by Article 19(1)(d) of the Constitution of India and shackles the personal freedom which is a fundamental tenet that cannot be compromised in the name of expediency until and unless there is a compelling state purpose.

Violative of Article 21

The concept of the right to life and personal liberty guaranteed under Article 21 of the Constitution would include the right to live with dignity. [[9]] It would include all those aspects of life which go to make a man’s life meaningful, complete and worth living. The right to life and personal liberty guaranteed under article 21 of the Constitution embraces within its sweep not only physical existence but the quality of life. If any statutory provision runs counter to such a right, then it must be held to be unconstitutional and ultra vires of Part III of the Constitution. [[10]]

In this, the expression “personal liberty” in Article 21 of the Constitution is violated because personal liberty in article 21 primarily means freedom from physical restraint of a person by incarceration or otherwise. Moreover, it has been observed by the Supreme Court that any law interfering with the personal liberty of a person must satisfy a triple test:[[11]]

  1. It must prescribe a procedure.
  2. The procedure must withstand the test of one or more fundamental rights conferred u/a 19 of the Constitution which may be applicable in a given situation.
  3. It must also be liable to be tested with reference to article 14 of the Constitution.

Therefore, according to the test prescribed by the Hon’ble Supreme Court, it can be clearly discerned that section 375(6) does not satisfy clause (b) and (c) under the prescribed test which is required for a statute and its provisions to be just, fair and not arbitrary.

Moreover, section 375(6) is also a violation of human rights enshrined u/a 21 of the Constitution because it does not include in its ambit that “presumption of innocence is a human right” [[12]] This can be affirmed by the fact that this clause recognizes the concept of sexual intercourse between a woman (minor) and a man as rape irrespective of the fact of determining the factor of consent.

Therefore, section 375(6) is also violative of right to life and personal liberty enshrined u/a 21 of the Constitution and hence it should not be lightly interpreted.

Violation of Doctrine of Golden Triangle- Conclusion

The golden triangle of article 14, 19 and 21 as it stands for equality and rule of law clearly forms the part of the basic structure of the Constitution and cannot be abrogated. These articles are not mutually exclusive and they jointly aim at reasonableness and fairness. In relation to this, the trend of Supreme Court is that when the constitutionality of a statute is challenged as arbitrary and unreasonable, the court has to test its validity on the anvil of articles 14, 19 and 21 read together.[[13]] Therefore, whenever any statute or statutory provision is violative of the doctrine of the golden triangle, then it should be rendered unconstitutional accordingly by the Hon’ble Courts of law.

[1] Narindejit Singh Sahni v. UOI, AIR 2001 SC 3810

[2] State of A.P v. McDowell & Co., (1996) 3 SCC 709

[3] E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, 38 (PARA 85)

[4] State of Bihar v. Bihar State, AIR 2007 SC 1948

[5] Municipal Committee, Patiala v. Model Town Res Association, AIR 2007 SC 2844

[6] N.B Khare v. State of Delhi, AIR 1950 SC 211

[7] Shambhu Nath Sarkar v. State of WB, AIR 1973 SC 1425

[8] Khudiram Das v. State of WB, AIR 1975 SC 550

[9] Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545

[10] Conf of Ex-Servicemen Association v. U.O.I, AIR 2006 SC 2945

[11] Dist Registrar & Collector v. Canara Bank, AIR 2005 SC 186

[12] Narendra Singh v. State of M.P, AIR 2004 SC 3249

[13] Minerva Mills v. U.O.I, AIR 1980 SC 1789

Author Details:

Ayushi Agrawal, a student at Galgotias University

The views of the author are personal only. (if any)

Source: Jus Weekly, May 20202, Issue 1

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