In a powerful critique of India's legal framework, Derek O'Brien, MP and leader of the All India Trinamool Congress Parliamentary Party, argues that when the law fails women, violence inevitably fills the gap. He asserts that so long as consent remains conditional in statutory provisions, justice for women will remain conditional in reality, directly defying the Constitution's foundational promise of dignity, equality, and personal liberty for all citizens.
The Haunting Question: What Does Justice Look Like for Women in India?
The piece opens with a poignant reflection on the communal violence in Manipur three years ago, where incidents of physical and sexual brutality captured national attention. Earlier this month, a 20-year-old woman, who was gang-raped during that ethnic conflict, succumbed to her injuries—a devastating reminder of the enduring trauma. The victim's sister, speaking at Delhi's Constitution Club, voiced a sentiment that resonates deeply: "Nobody could give her justice." This tragic case prompts O'Brien to explore the broader question: What does justice truly look like for women in India? He meticulously examines how critical lacunae in key laws continue to systematically undermine women's consent and autonomy.
Marital Rape Exception: A Legal Anomaly
One of the most glaring issues highlighted is the marital rape exception. Codified in the Indian Penal Code of 1860 and retained in Section 63 of the Bharatiya Nyaya Sanhita, this law explicitly exempts non-consensual sexual intercourse by a man with his wife from the definition of rape. O'Brien points out that this exception fundamentally negates women's consent within marriage by presuming irrevocable and perpetual sexual access. While women may seek civil remedies under the Protection of Women from Domestic Violence Act, 2005, the denial of criminal redress for rape entrenches a harmful hierarchy where marital status overrides bodily integrity. Notably, the 42nd Law Commission Report in 1971 recommended criminalising marital rape, yet the Bharatiya Nyaya Sanhita retains this outdated provision, perpetuating injustice.
Differential Marital Ages: Institutionalising Inequality
Another area of concern is the differential marital ages under the Prohibition of Child Marriage Act, 2006, and allied statutes, which set the minimum age at 18 years for women and 21 for men. O'Brien argues that this differentiation lacks any scientific basis. If the objective is to prevent early marriage or ensure maturity, the same age should apply to all genders. Conversely, if the aim is to protect women, lowering their marriage age ironically defeats that purpose by legitimising age gaps, reinforcing dependency, and curtailing educational opportunities. A law that institutionalises inequality at the very entry point of marriage cannot credibly claim to promote dignity, equality, or meaningful consent.
Restitution of Conjugal Rights: Enforcing Cohabitation Over Consent
The Restitution of Conjugal Rights (RCR) is another problematic legal remedy. Codified under Section 9 of the Hindu Marriage Act and Section 22 of the Special Marriage Act, RCR allows one spouse to compel the other to resume cohabitation if they have withdrawn from the marriage without proving "reasonable cause." This provision treats cohabitation in marriage as an enforceable duty rather than one based on genuine consent. The burden is placed on the withdrawing spouse, most often women, to justify their decision, even in cases where withdrawal is driven by emotional, psychological, or sexual abuse. Given that marital rape is not criminalised, RCR can force women back into situations that compromise their bodily integrity and dignity. By prioritising the preservation of marriage over consent, this law conflicts with fundamental rights to life, privacy, bodily autonomy, and equality.
Criminalisation of Consensual Underage Relationships
Conversely, O'Brien highlights situations where women and girls expressly give consent, yet the law refuses to recognise it. Under the Protection of Children from Sexual Offences (POCSO) Act, 2012, offences like sexual assault do not require proof of non-consent, implying that consent becomes irrelevant when a person below age 18 is involved in a sexual act. A significant proportion of POCSO prosecutions stem from romantic relationships among adolescents. These cases are often initiated by families seeking to control young women's choices, particularly in instances of inter-caste, inter-faith, or socially disapproved relationships. Without distinguishing exploitation from consensual intimacy, the law sacrifices adolescent autonomy without meaningfully strengthening protection against abuse.
Marriage Assurance and Conditional Consent
Section 69 of the Bharatiya Nyaya Sanhita, 2023, criminalises sexual intercourse obtained by a false promise of marriage. This rests on the presumption that women's sexual consent is inherently tied to the expectation of marriage. As a result, consensual non-marital relationships are reframed as sites of deception or victimhood, even when both parties entered the relationship voluntarily. O'Brien notes that intentions in relationships naturally evolve, and the absence of clear legal standards invites inconsistent enforcement and potential for misuse, further complicating women's agency.
In conclusion, Derek O'Brien emphasises that so long as consent remains conditional in law—whether through exceptions, differential treatments, or presumptions—justice for women will remain conditional in reality. This stands in direct defiance of the Constitution's promise of dignity, equality, and personal liberty. The piece calls for urgent legal reforms to align statutory provisions with these constitutional ideals, ensuring that women's consent is respected unconditionally across all spheres of life. Research credit for this analysis is attributed to Chahat Mangtani.
