GENDER NEUTRALISATION OF RAPE LAWS IN INDIA.

ABSTRACT

According to the Section 375^[1] and 376^[2] of Indian Penal Code says that only a man can be convicted of committing Rape and the victim should only be a woman. Therefore, the law relating to Stalking, Rape, and Sexual Harassment is gender-specific i.e., the perpetrator can only be Man and while the victim shall be a woman. The offense of Rape has been in existence throughout the history of human civilization.

The need for reformation in rape law has been felt since the 1980s. Before 2013 the definition of ‘Rape’ was only restricted to penile-vaginal penetration.

The Indian law is based on the belief that the victim can be a woman while the perpetrator can be a Man. However, acid attacks are playing a vital role in society. All the members of society should have the responsibility for what they are doing, why they are doing, and for what they are doing these are the things mainly done by the perpetrators and the accused persons. There is a growing awareness that sexual assault is not only an act of lust and desire but also a manner of showing superiority towards the caste, religion, community, and class over the other acts of power and humiliation

INTRODUCTION

Rape is a fourth most prominent crime in India and causes with serious isssue throughout the world. Mainly, Rape is a crime that is assumed to be done against the women by a man but have ever thought vice veras. Actually, rape can happen to anyone regardless of their age, gender, sexual attidue. Recently in Hyderabad a case was filed regarding this topic. A 6 years old girl was raped, murdered by a 30-years old neighbour. Here, we can see there is no humanity to the perpetrators. First of all, women have to protect themselves to defend the man in society. So, crime can decrease.

Rape on females is mostly committed by males, and rapes involving transgender are excluded from the current laws. Gender-neutrality could only be truly envisioned when all its sub-dimensions are judiciously enumerated and implied.

The offense of rape is hence, recognized as a crime committed on the female body by a male perpetrator. Due to being vastly unreported and significantly less frequent than female rape, male rape in India is considered an anomaly; but it is no matter an exception. Just as an idea of men as victims of rape is inconceivable, women being the perpetrator of a sexual crime is also treated outwardly.

The Law Commission of India in its report of 172^nd has it recommended that the rape law must be gender-neutral, and it was argued that the principles ‘right to equality and Equality before law/ Equal protection of rights’ are enshrined as fundamental rights of our constitution it must be applied in this situation as well.

The concept of violation of bodily integrity is circumscribed in term ‘Rape’ under Section 376 of the Indian Penal Code, 1860 has been amended multiple times, the definition still peers with the traditional conception associated with rape wherein it is presupposed that the victims and perpetrators are always women and men respectively. Rape is the fourth most prominent crime in India.

According to the Human Rights Act, 1993 derives that all are equal to give protection and prevention, to give them unfair treatment on the basics of irrelevant personal characteristics is void under the law. The Human Rights Act, 1993 covers discrimination on the grounds of sex, marital status religious belief, ethical belief, colour, rare, etc…

KEY WORDS: Gender-Neutrality, rape, crime, equity, uprightness, impartially.

RESEARCH METHODOLOGY

The Research and database analysis is conducted to understand the gender neutrality Rape Laws in India. The data is collected mostly from the books of CrPC, IPC, and various books, journals, Articles, Reports published by the government of Central and State like Gazette, Time of India, and websites. Mainly, the judgments from the official websites.

HISTORY OF RAPE LAWS IN INDIA

Women in India has proactively engaged in innumerous movements and protests concerning the agenda of reforms in rape law since the 1980s. Women groups, for a particular period, have struggled to widen the scope as well as the definition of Rape. The Mathura rape case s one of the landmark judgments in Indian women’s rights. This case was held by the Apex Court of India that Mathura was a victim who had been raped by the three policemen, had submitted and given her consent to the sexual intercourse as there were no injuries of resistance found on her body during the medical examination. Inter alia, it was held that the absence of injuries implies consent. This verdict by the Supreme Court was tremendously criticized and four eminent law professors wrote an open letter to the Chief Justice of India Scrutinizing the judgment. The Mathura case invoked a sudden demand of shifting the “burden of proof” regarding consent to the accused once the prosecution discharges its confirming sexual intercourse.

During that, the recent developments in rape cases include a petition which was filed by several social activists to conduct the in-camera proceedings for the rape trials and not to publish the rape victim’s 2020. Another significant demand was to hold the victim’s sexual antecedents irrelevant for determining that whether the accused is feeling guilty of rape. All these women-centric amendments brought a vital shift to the conventional mechanism and functioning of rape law. Unfortunately, none of these amendments opined that men could be subjected to be the victims of rape or the fact that their rights against must be a fulminated too.

LAW REFORMS

The Criminal Law Amendment Act, 1983

The Criminal Procedure Law was amended in 1983. It is a major amendment made for the rape trials could be held on the camera under Section 327 of CrPC^{^[3]}. On the other hand, its disclosure of the identity of a rape victim became an offense under the Section 228A^{^[4]} of the Indian Penal Code. An enhanced degree of punishment was set for the custodial situations under Section 376(2) of IPC. Another important amendment was that the insertion of Section 114A of the Indian Evidence Act, 1872 with the presumption of absence of consent in specific situations was made.

The highlight of the 1983 amendment was the separate recognition of custodial rape as an offense. Custodial rape is considered to be a heinous offense because the accused is in an official position to associate with the violation of trust in them. Another major improvement was the shift of providing Consent to the accused in such cases.

Indian Evidence Amendment Act, 2002^{^[5]}

The Indian Evidence Amendment Act, 2002 prohibits the defense from putting the questions to the cross-examination of the prosecutor about her gender, moral character, and sexual history. Section 155(4) was omitted under the 2002 amendment as it says that the victim’s sexual history of a person is of utmost importance as it determines the immorality of her character. This clearly defines that rape/ sexual assault has changed over the years with different types of scenarios coming up along with society’s changing mindset. Traditionally the male-on-female paradigm is yet to fade.

It is important to note that no such gender-based differentiation has ever been reflected through any of the amendments that have taken place.

The Criminal Law Amendment Act, 2013^{^[6]}

The Criminal Law Amendment Act, 2013. The Delhi gang Rape case led t significant changes in the IPC regarding rape laws. This amendment introduced a special provision for the attacks, sexual harassment, disrobing a woman, voyeurism, stalking, and, trafficking.
Laws are relating to stalking, voyeurism, and sexual harassment all gender-specific.
The laws relating to the acid attack are gender-neutral.

The definition of Rape was broadened not only to include penile-vaginal but oral, anal & insertion of any object into the vagina, urethra, or anus of women as well. The punishment for rape in aggravated and non-aggravated situations was enhanced. Therefore, only men can commit rape on a woman.

Therefore, Rape is a non-cognizable offense bail can’t be issued by the court of law.

LAW PROTECTING WOMAN IN INDIA FROM SEXUAL ASSAULT/RAPE

In India, Rape cases are prominently increasing but the government has not taken any efforts towards the accused persons they are happily living without any fear of the laws. First and Foremost, the Indian penal Code, 1860 protects women in India from Rape Sexual assault through its provision. Section 375 of IPC says that the definition of rape and declared it is an offense in IPC. On the other side, Section 376 punishes the same. Section 375 proves that non-consensual and even consensual sexual intercourse would be brought under the definition of rape.

Ingredients of the offense of rape. They are;

Consent
Penetration

Consent

To protect women, laws should be established to punish the accused persons. So it is necessary to establish the “sexual intercourse” to complain of either against the will or without her consent, where the consent is obtained the circumstances enumerates under clauses (1) to (6) would be brought under the definition of ‘Rape’.

According to the Case Dileep Singh V. State of Bihar [(2005) 1SCC 88]^{^[7]}says that the SC held that will and consent may be the same meaning however the legal definitions of both terms are different. They may not have been willing but still, consent to a sexual act. Thus, the IPC, 1860 categories that ‘Will’ and ‘Consent’ Under 2 separate heads.

In Case of State of H.P V. Mango Ram [(2000) 7 SCC 224]^{^[8]}The Supreme Court observed that the submission of one’s body under fear or a terror-stricken mind and even misconception that can’t translate into consent. Section 375 doesn’t have voluntary consent and voluntary participation in the sexual act and that is not just consent and participation.

Penetration –Section 375 clarifies that mere penetration is sufficient enough that to constitute the offense of rape. In the Case of Koppula Venkat Rao V. State of AP [(2004) 3 SCC 602]^{^[9]}, the SC held that the important clarification about the penetration is enough to constitute rape, Ejaculation without penetration is an attempt to commit the offense of rape. Ejaculation is not a necessary ground to constitute the offense.

GENDER NEUTRALITY CONCERNING RAPE LAWS

The collective term ‘gender neutrality’ has been mocked as a term that disguises more than it communicates its meaning. It means equality in some laws which are gender-specific even if all kinds of gender have the potential to face the same kind of crimes.

For Example; Men or even transgender people can be forced into having sexual intercourse or exposed he sexual assault/abuse.

There are 2 major perspectives on the Gender Neutrality of Rape Laws. They are

Victim
Perpetrator

Neutrality Concerning the victim

Transgender Victimization

Transgender is a term to describe people who don’t conform to traditional notions of gender identity, appearance, and expression. It says that India became their home for the transgender community ran to see that in our daily life we can see more of them are near the shops, signaling their living purpose. In that there are some good and bad people, we can’t do anything with bad people. The Hijra community in India traces its origins to myths in the Ramayana and the Mahabharata. But, why are they barely recognized by the Indian law/Society and denied the rights as full citizens of the country?

It includes that hijras, kothis, and trans-sexual there are undergoing surgical operations for the opposite sex. So, respect everyone without discrimination. Yet, transgender victimization is not even considered a violation under the Criminal statute. The PUCL-K report relieves that the statutory and the societal it is the main cause of violation of human rights of the transgender community.

Male Victimization.

In India, coercive man-on-man sexual intercourse is covered under Section 377 of IPC, and it is considered against nature. It is a colossal flaw in the reasoning behind the term “Male on Male Rape” it is blended with the intercourse between homosexuals. As we have seen under Sec 367 of IPC, Post the criminal Amendment Act, 2013 the punishment is 7 years to maximum life imprisonment, some of the cases were death. On the other side, the penal liability under Sec 377 is no such punishment in these. However, male-to-male Rape is not recognized by such presumptions.

Neutrality with the respect to the perpetrator

Female on male rape.

These are both views against making the female a perpetrator in the case of female on male rape. These are the points;

Real men can defend him against rape.
It is physically impossible for women to rape men.
It does not reflect on social reality.
Men and Women experience sexual assault differently.
A gender-neutral law will have negative consequences on female victims.
Female on female rape

In-State Government V. Sheodayal [1956 Cri LJ 83]), Madhya Pradesh, the high court opined that the modesty of a woman had outraged the other women under the purview of Sec 354 of IPC. Here the question is whether a woman can commit gang rape was dealt by the Supreme Court in the case of Priya Patel V. State of M.P^{^[10]}. The language of Section 376(5)(g) provides that Whoever commits gang rape shall be punished etc… Further, the explanation of that is when a woman is raped by one or more in a group of persons acting in furtherance of their common intention. Therefore, technically the act of penetration is not required to the performed by each member of the group.

However, the court held that a woman can’t have any intention to commit rape. Consequently, it is inconceivable that a woman can rape another woman. This is logical and substantially flawed because the section requires the presence of common intention only.

Why cannot a woman have a common intention to rape another woman, even if we assume that it is physically impossible for her to rape?

While the issue of whether a female can rape a male has been widely discussed and debated in that point of view and the public domain, scholars and activists in India have largely remained silent on this fact of gender neutrality.

JUDICIAL PERSPECTIVE

It is noted that the judiciary has been pretty silent regarding this issue over the years. Therefore, there are no such laws or even precedents that advocate for gender neutrality in rape laws. In 1996, in the case of Bodhisatwa V. Subhra Chakraborty [(1996) 1 SCC 490]^{^[11]}, the apex court of India observed that “rape is a crime against basic humanrightsand it is violative of the victim’s most cherished of the Fundamental Rights”.
Especially, the Right to Life under Article 21 is grossly violated.
Gender-Neutrality rape law surfaced for the first time in the case of ^[12]Sudesh Jhaku V. K.C.Jhaku, wherein the court adjudicated that sexually assaulted men shall beunder the preview of the same protection of the law as provided to the female victims.
In Sakshi V. Union of India^{^[13]}, is a case where the Supreme Court redirected the entire to be dealt with by the Law Commission of India. Consequently, the “172^nd Law Commission^{^[14]}” reported that recommended the rape laws must be gender-neutral in nature as well as in substance, were both in light of the victim as well as the offender.
The Justice J.S. Verma Committee^{^[15]} The report suggested that gender-neutral rape legislation for the victim and gender-specific legislation for the Offender. Where none of the two were incorporated into the legislation of the Nation.

CONCLUSION

Here we conclude that we should try to balance the rights of all identities. Thepunishment for a crime is as heinous as the crime committed and shouldn’t be restricted to a specific class; it should apply to all citizens irrespective of their gender. The gendered language, which means a man can’t claim the sexual assault by a woman because the definition of Rape is committed by the man. A man can sue under violence/assault but not under rape and punishment for it won’t be equal to rape through the act was the same. Suffering is incomparable; it is the same for all people. The survivors whether maybe male, female and transgender all are equal when it comes to emotional pain, mental and physical. Justice Verma Committee Report suggested a midway solution to make the victim gender-inclusive while the perpetrator remains gender-specific.

Men and women are made to coexist and supplement each other for their survival as well as towards society. But this relationship is the basic foundation of society, unfortunately, it has become the most abused aspect in social life.

A gender-neutral society is truly equal and thus, the fundamental rights under the constitution are upheld. So, it is concluded that the existence of male and transgender rape in India, especially male-on-male rape can’t be denied. The supporters of complete gender neutrality rely on the argument of the right to equality and the social stigma that surrounds male rapes. After analyzing both sides, it must be kept in mind that despite the absolute need for gender-neutral laws and the recognition of fluid genders, it must not create a detrimental environment for the female victims of Rape.

Submitted by:

P.Poojitha

2^nd-year B.A.LLB (General)

DR. Ambedkar Global Law Institute, Tirupati.

[1] https://indiankanoon.org/doc/623254/

Section 375 of Indian Penal Code

[2] https://indiankanoon.org/doc/1279834/

Section 376 of Indian Penal Code

[3] The Code of Criminal Procedure, 1973 of Section 327.

https://www.latestlaws.com/bare-acts/central-acts-rules/crpc-section-327-court-to-be-open/

[4] https://indiankanoon.org/doc/1696350/

Indian Penal Code, 1860 of Section 228A.