Author: Mehrul Arora


“The life of law has been logical; it has been experience.” It may be added that ‘the life of law is not just logic or experience. The life of law is renewable based on experience and logic, which adapted law to the new social reality.’[1]-

~ Oliver Wendlle Holmes

INTRODUCTION

Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female.[2] But the Right to Privacy and bodily integrity of the men, trans men/women and homosexuals is subjected to the same intrusion if not protected by penal laws. The protection to women provided under the section 375 of the Indian Penal Code (hereinafter referred to as IPC), 1860 is gender biased as it unreasonably classifies between women, men trans men/women and homosexuals to be vulnerable and it protects only women from the act of rape and is completely ignorant towards the other genders of our society.

RAPE LAWS IN INDIA

While Section 375 of the IPC deals with rape committed by a man on a woman, Section 376 provides for the punishment for the same. Section 375 states that –

 A man is said to commit “rape” if he—

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions:—

First.—Against her will.

Secondly.—Without her consent.

Thirdly.—With her consent, when her consent has been obtained by putting her or       any person in whom she is interested, in fear of death or of hurt.

Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.—With or without her consent, when she is under eighteen years of age.

Seventhly.—When she is unable to communicate consent.

Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.—A medical procedure or intervention shall not constitute rape.

Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

As Iyer, J., has aptly said, “The purpose of law is the establishment of the welfare of society “and a society whose members enjoy welfare and happiness may be described as a just society. It is a negation of justice to say that some members, some groups, some minorities, some individuals do not have welfare: on the other hand they suffer from ill-fare. So it is axiomatic that law, if it is to fulfil itself, must produce a contented, dynamic society which is at once meting out justice to its members.”[3]

In the landmark case of Vishaka v. State of Rajasthan[4] it was observed that with the increasing awareness and emphasis on gender justice, there is increase in the effort to guard such violations; and resentment towards incidents of sexual harassment is also increasing. But, the basic structure on which the abovementioned law rests is that it is only the male who can be the perpetrator of this crime and it is only the female who can be the victim. This notion is flawed in itself because a sexual offence may be committed by all sexes, be it male, female, transgender or a homosexual. If a male, transgender or homosexual, does not consent for sexual intercourse, sadly, our law does not have any specific provision for punishment for this offence.

REPORTS OF LAW COMMISSION OF INDIA

The first step towards reforming the rape laws of our country was discussed in the 42nd Law Commission Report, 1971, wherein it was suggested to change the definition of rape by inserting the words ‘either to herself or anyone else’ in section 375 of the IPC and it was in the 172nd Law Commission Report of India, 2000, which was submitted 18 years ago, that urged the Parliament to replace the present definition of rape with a broader definition of sexual assault, which is both age and gender neutral. In this report, the suggestions of “Sakshi”[5], an organization, was also taken into consideration and it was observed that not only women but young boys, are being increasingly subjected to forced sexual assaults.  Forced sexual assault causes no less trauma and psychological damage to a boy than to a girl subjected to such offence. Boys and girls both are being subjected to oral sexual intercourse too. It is therefore necessary that there should be a rethinking on this issue and the offence of ‘sexual assault’ should be more precisely defined and its parameters indicated. The Law Commission of India in this Report also recommended a changed definition of Section 375 of IPC and the same was also observed in the case of Tara Dutt v. State[6] and the definition is as follows:

Sexual Assault means –

(a) Penetrating the vagina (which term shall include the labia majoria), the anus or urethra of any person with –

  1. any part of the body of another person or
  2. an object manipulated by another person

except where such penetration is carried out for proper hygienic or medical purposes;

(b) manipulating any part of the body of another person so as to cause penetration of the vagina (which term shall include the labia majora), the annus or the urethra of the offender by any part of the other person’s body;

(c) introducing any part of the penis of a person into the mouth of another person;

(d) engaging in cunnilingus or fellatio; or

(e) continuing sexual assault as defined in clauses (a) to (d) above in circumstances falling under any of the six following descriptions:

Firstly – Against the other person’s will.

Secondly – Without the other person’s consent.

Thirdly – With the other person’s consent when such consent has been obtained by putting such other person or any person in whom such other person is interested, in fear or death or hurt.

Fourthly – Where the other person is a female, with her consent, when the man knows that he is not the husband of such other person and that her consent is given because she believes that the offender is another man to whom she is or believes herself to be lawfully married.

Fifthly – With the consent of the other person, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by the offender personally or through another of an stupefying or unwholesome substance, the other person is unable to understand the nature and consequences of that to which such other person gives consent.

Sixthly – With or without the other person’s consent, when such other person is under sixteen years of age.

Explanation: Penetration to any extent is penetration for the purposes of this section.

Exception: Sexual intercourse by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault.”

The Union Cabinet on 19.07.2012 proposed to make rape a gender-neutral offence. Thereafter, the Criminal Law (Amendment) Bill, 2012 was introduced in the House of People. The said bill proposed to replace the term ‘rape’ with that of ‘sexual assault’. Moreover, the said bill defined both the victim and perpetrator as ‘any person’, thereby making both parties gender neutral. Gazetted Notification dated 03.02.2013 the Criminal Law (Amendment) Ordinance, 2013 was brought into effect which expanded the ambit of rape by providing for gender neutrality of victims and including various acts under the definition of rape. However, the said Ordinance was in effect for merely a period of 58 days as it was repealed and replaced by the Criminal Law (Amendment) Act, 2013 with retrospective effect from 03.02.2013.

GENDER BIASED RAPE LAW IS IN VIOLATION OF THE FUNDAMENTAL RIGHTS

The fundamental rights to equality in protection and safeguarding measures (Article 14), no discrimination on basis of sex (Article 15), special laws for socially backward classes (Article 15{5}), life with human dignity, to equality, bodily integrity and privacy (Article 21) are enshrined in the Constitution of India as inalienable rights. Furthermore, the right to be protected from sexual assault is buttressed by the Directive Principles of the State policy contained in Articles 38, 39 and 39A of the Constitution of India which are to be harmoniously construed with the rights contained in Part III of the Constitution of India.[7]

The landmark decision in Navtej Singh Johar v. Union of India Ministry of Law and Justice Secretary[8] decriminalized consensual carnal intercourse against the order of nature holding Section 377 as violative of Articles 14, 15 and 21 of the Constitution of India, so long as the act is consensual; but the judgment did not equate non-consensual carnal intercourse against the order of nature (between any 2 or more adults) as sexual assault, and continued to deem it as an unnatural offence.

In the case of National Human Rights Commission v. State of Arunachal Pradesh,[9] the Court observed that we are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. Furthermore, in the case of Deeksha Dwivedi & Ors. v. Union of India & Ors.[10]  It was observed that a breach of gender – neutrality would involve an infraction of constitutional norms in relation to the guarantee of equality under Article 14 and of gender identity under Article 15 of the Constitution. Therefore, the life and the dignity of males, transgenders and homosexuals should also be protected along with those of the females and for that protection should be provided to them from such sexual offences.

 The right to life and personal liberty entails within its folds right to live with human dignity as well, as the expression includes that- “No person shall be deprived of his life and personal liberty, except the procedure established by law.”[11] Right to life means life with dignity and in P. Rathinam v. Union of India[12], the Hon’ble Court has defined ‘life’ as the right to live with human dignity and the same does not connote continued drudgery. It takes within its fold some of the fine graces of civilization which makes life worth living. The right to privacy is inextricably bound up with all exercises of human liberty – both as it is specifically enumerated across Part III, and as it is guaranteed in the residue under Article 21. It is distributed across the various Articles in Part III and, mutatis mutandis, takes the form of whichever of their enjoyment its violation curtails. Thus, the ineluctable conclusion must be that an inalienable constitutional right to privacy inheres in Part III of the Constitution.[13] The act, thus, defined under Section 377 is termed as an ‘unnatural offence’ and not even afforded the status of ‘sexual assault’, let alone ‘rape’, making it completely devoid of dignity, bodily integrity, personal liberty and privacy, all enshrined under Article 21 of the Constitution of India.[14]

Also, the Doctrine of Pari Materia says that “It is settled law that two statutes are said to be in pari materia with each other when they deal with the same subject-matter. The rationale behind this rule is based on the interpretative assumption that words employed in legislation are used in an identical sense”.  Privacy ruling has made gender specific present IPC 375 and IPC 376 null, void and unconstitutional and the present IPC can be replaced by Gender Neutral IPC 375 and IPC 376 of Ordinance 2013.[15]

Thus, protecting the males, transgender and homosexuals from such apprehension of losing their dignity, forebears the fundamental rights. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine,[16] and therefore, Section 375 being gender biased or female – oriented, not only circumscribes the right of the males, transgender and homosexuals but also is an unjust legal provision which is violative of the fundamental rights.

RAPE LAWS IN OTHER COUNTRIES

CANADA

Since The Canadian Charter of Rights and Freedoms came into effect in 1982, sexual assault law in Canada has undergone significant progressive reforms [17] and in 1983, the narrowly defined offences of rape and indecent assault were replaced with a gender-neutral hierarchy of sexual assault offences which build on the assault provisions of the Criminal Code.

Earlier, the laws on sexual offences were gender – specific that were inconsistent with Section 15(1) of the Charter, that is, before the introduction of the Act which amended the Criminal Code in relation to sexual offences that followed the entrenchment of The Charter in the Canadian Constitution. Section 15 of the Charter states that, “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

Section 271 of the Criminal Code states that “Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one

year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.”

UNITED STATES OF AMERICA

The Uniform Crime Report’s (UCR) revised definition of rape is –

“the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

The new definition is more inclusive, better reflects state criminal codes and focuses on the various forms of sexual penetration understood to be rape. This definition includes any gender of victim or perpetrator, and includes instances in which the victim is incapable of giving consent because of temporary or permanent mental or physical incapacity, including due to the influence of drugs or alcohol or because of age [18]

The reason behind revising the definition of rape was the recent report of Centers for Disease Control and Prevention, which stated that 1 in 71 men in the U.S. have been raped or have had an experience of attempted rape, while 4.8% of men reported they were made to penetrate someone else at some time in their lives.

AUSTRALIA

Section 48 of the Criminal Law Consolidation Act, 1935 of South Australia defines rape as –

“(1) A person (the offender) is guilty of the offence of rape if he or she engages, or continues to engage, in sexual intercourse with another person who—

(a) does not consent to engaging in the sexual intercourse; or

(b) has withdrawn consent to the sexual intercourse, and the offender knows, or is recklessly indifferent to, the fact that the other person does not so consent or has so withdrawn consent (as the case may be).

Maximum penalty: Imprisonment for life.

(2) A person (the offender) is guilty of the offence of rape if he or she compels a person to engage, or to continue to engage, in—

(a) sexual intercourse with a person other than the offender; or

(b) an act of sexual self-penetration; or

(c) an act of bestiality,

when the person so compelled does not consent to engaging in the sexual intercourse or act, or has withdrawn consent to the sexual intercourse or act, and the offender knows, or is recklessly indifferent to, the fact that the person does not so consent or has so withdrawn consent (as the case may be).

Maximum penalty: Imprisonment for life.

(3) In this section—

compels—a person compels another person if he or she controls or influences the other person’s conduct by means that effectively prevent the other person from exercising freedom of choice; sexual self-penetration means the penetration by a person of the person’s vagina, labia majora or anus by any part of the body of the person or by any object.

Section 5 of the Act states that, “sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving—

(a) penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object; or

(b) fellatio; or

(c) cunnilingus,

and includes a continuation of such activity.”

Thus, making the rape laws, gender neutral.

CONCLUSION

Women commit crime for the same reason as men do and as crime has no gender, neither should our laws, except if so required. The laws should not distinguish between criminals on unreasonable and arbitrary grounds, that is, on the basis of a person’s gender, as every person who commits a crime is liable to be punished by law and every person against whom a crime is committed has a right to be protected by law.

As a society, we must develop empathy for all the genders and stop stereotyping genders as the victims of sexual assault or rape are not only females, but also males, trans men/women and homosexuals. Not only a change in the societal ideologies and perspective is required but it is a need of the hour to reform our legal framework as having no protection under the penal laws deter the males, trans men/women and homosexuals from stepping up for their rights and complaining regarding the same, which ultimately degrades their dignity in the society.

Various countries across the globe have reformed their rape laws so as to make them gender neutral and in accordance to the prevailing changes in the society, there arises an urgent need to neutralize Section 375 of the IPC and remove gender biasness from this section, so that it protects all genders from this traumatizing offence and also conform to the various fundamental rights as provided under Part III of the Constitution of India.


[1] National Legal Services Authority v. Union of India & Ors., (2014) 5 SCC 438.

[2] State of Punjab v. Ramdev Singh, AIR 2004 SC 1290: 2004 (1) SCC 421.

[3] Dattatraya Govind Mahajan v. State of Maharashtra, 1977 SCR (2) 790.

[4] (1997) 6 SCC 241.

[5] Writ Petition (Crl.) No.33 of 1997.

[6] Crl .Rev.P. No. 321 of 2008.

[7] Criminal Justice Society of India v. Union of India & Ors.,

[8] Writ Petition (Crl.) No.76/2016.

[9] AIR 1996 SC 1234.

[10] 25 November, 2014, Allahabad High Court.

[11] Article 21 of the Constitution of India.

[12] AIR 1994 SC 1844: (1994) 3 SCC 394.

[13] K.S.Puttaswamy J., v. Union of India, Writ Petition (Civil) No. 494 of 2012.

[14] Supra 7.

[15] Sanjjiiv Kumar v. Union of India, Writ Petition (Civil) No. 8745 of 2017.

[16] State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal, AIR 2010 SC 1476.

[17] Canadian Charter of Rights and Freedoms, s 2(b), Part 1 of the Constitution Act 1982, being Schedule B to the Canada Act (UK), 1982, c11 [hereinafter referred to as “Charter”]. Martha Shaffer, “The Impact of the Charter on the Law of Sexual Assault: Plus Ça Change, Plus C’est La Même Chose” (2012) 57:15 Supreme Court Law Review 337 at 337

[18]  The United States Department of Justice, Attorney General Eric Holder announces revisions to the Uniform Crime Report’s definition of rape, 2012, https://www.justice.gov/opa/pr/attorney-general-eric-holder-announces-revisions-uniform-crime-report-s-definition-rape


About the Author: Mehrul is a 2015-20 law student at Law College Dehradun, Uttranchal University.


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