Introduction

About 50% of the Indian male population is positively traced with a sexual dysfunction which creates hindrances in basic human instincts, leaving one crippled with ignominy. Impotence is the inability in developing or maintaining a penile erection sufficient to conclude the act of intercourse to orgasm and/or ejaculation occurring biologically which is mainly of two types-physical and psychological. Unlike sterility, potency is transitorily dependent on various factors. Untreated Impotence results in sexual sadism. The Mental Healthcare Act 2017, disregards sadism or psychologically generated impotence, indirectly making India the “impotence capital of the world.”

Secondly, the atrocious Impotence Test prevailing chiefly is considered a decisive piece of evidence in cases of rape. This embarks the beginning of torture in the Indian Criminal Justice System. The inhumane approach adopted by the Indian Penal Code in giving discretionary powers to the police officers attacks the scheme of the Indian Constitution. Despite the generic relevance of the test in most cases, routine practice violates Article 21 (Right to Life) of the Indian Constitution. In this article, we highlight the extraneous essence of the impotence test in light of the Indian Criminal justice system and the Indian Constitution.

The terror of the Impotence Test

Traditional female-centric laws pertaining to sexual offences in India butcher male integrity and violate their basic human rights. Checking the potency in rape cases remains a significant practice of law. The relevance of potency extends to adoption, nullity of marriage and divorce along with sexual offences.

Section 53 of the Criminal Procedure Code (Cr.P.C.) showers “unfettered discretionary power” on police to believe that an examination will afford evidence for the case and wistfully magistrates are ousted of such powers. The lacunae in the provision can be identified as:

Firstly, according to acclaimed Modi’s Indian Medical Jurisprudence, the potency test establishes the capability of committing the alleged sexual acts but the hamartia is the laxity of courts in considering situational and psychological factors, resulting in varying opinion of courts on similar matters.

Secondly, force may be used by the police authorities on the unwilling person to collect samples, otherwise threat of masturbation performed on him is invited caused by wrongful interpretation. Religious seers,like Raghaveshwara Bharathi and Asaram accused of rape faced a similar threat. The DNA Technology (Use and Application) Regulation Bill, 2018, bifurcates consent required in taking bodily fluid into two instances, written Consent  in crimes with less than 7 years of punishment and no consent for crimes with punishment of more than 7 years. The clear legislative intent is to differentiate between the two which gets contradicted by the unchecked power given to police authorities in deciding the necessity of performing the examination. Thus, the Indian Penal Code violates the ‘due process of law’ of the Indian Constitution.

Further, the constitutionality of S.53Cr.P.C was upheld by the Karnataka High court by upholding that mere question of misuse by a Police Officer, does not reflect vires of the specific section  in Shreemad v State of Karnataka. Contrarily, the Hon’ble Supreme Court of India in Sushil Kumar v State of Madhya Pradesh, held that the constitutional validity of a section does not permit unleashing of harassment. Further, the apex court in State of West Bengal v Swapna Guha also opined that, “There is no concept of unfettered discretion in the realm of powers and unlimited discretion indeed destructs personal freedom”. These views of the apex court are in strong defiance with the view of the Karnataka High court, thus necessitating a reassessment of the above judgment.

The court in Swapna Guha, opined that in cases of no consent, nature of the invasion of the body should determine the question of due process under Article 21 of the Indian Constitution. According to this, masturbation by police is necessarily an invasion of the person’s body.  However, not all kinds of body fluid extraction are in violation of a person’s privacy, but parts of “unnecessary investigation” explained below are dubious.

Criminal Law (Amendment) Act, 2013, which widened the definition of rape, rendered the potency test irrelevant in rape cases. Currently peno-vaginal intercourse is not the only ground to prove rape. Yet, courts insist upon practicing the “potency tests” every time. Mentioned below are some instances of gross violation of male human rights.  

Futile aspect of the Impotence test.

Current rape laws read “penetration of the penis into the female vulva”, comprising of the labia majora and minora”. Erection is not required when touching the labia minora and majora according to medical science. In cases of child sexual abuse, penis is placed either within the vulva or the thighs as penetration is unattainable since the hymen majorly encases vagina of a child. Courts positively consider this rape. Thus where erection is not obligatory, the relevancy of Potency test is indeed questionable.

In our opinion, this regressive test can be substituted with the technique of Touch-DNA which contributes extensively in investigations that approximates DNAs. Skin and clothing of the victim can be investigated in case of sexual assault. In other cases, a careful assessment should be made by the Judiciary before demanding such a test.

Conclusion

The relevance of potency can further be spotted in marriage where coitus plays an indispensable role. This is the result of the inherent connection of consummation of marriage to sex in India. Thus, a husband’s inability to perform conjugal duties amounts to cruelty, implying distress to the spouse”. Thereby the courts must consider the issue of “prior knowledge” of impotence alongside the question of wilful denial and must consider Relative Impotencies. Ironically, Schizophrenia which is a prohibited ground for divorce against wives is still applicable against men under S.12 Hindu Marriage Act, 1955.  Disregarding depression and anxiety as causes of Erectile Dysfunctions is unarguably a gaffe.

Thus where the Indian justice system promises to protect individuals from transgressions from both the state and the private body, such regressive practices undeniably violate indispensable human rights and make males capitulate to the antipode of “liberty” guaranteed by the Indian Constitution.