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The Lacuna in Law: Desideratum of Gender-Neutral Rape Laws

Introduction
Equality is one of the magnificent cornerstones of Indian democracy[1]. The preamble of the Constitution recognizes the ‘principle of equality’ as a part of the basic structure. Article 14 of the Constitution embodies the general principle of equality. It permits reasonable classification but prohibits class legislation. Thus, Article 14 allows separate treatment for different classes according to their needs[2]. In fact, the Apex Court in Abdul Rehman v/s Pinto[3] has stated that ‘identical treatment in unequal circumstances would amount to inequality’.
Article 15 lays down the specific application of the general rule laid down in Article 14. However, clause (3) of Article 15 is an exception to it. It empowers the state to make special provisions for women and children. For example, Under Article 42, women workers can be given special maternity relief and a law to this effect will not infringe Article 15(1)[4].
Now coming to the rape laws in India, section 375 of the Indian Penal Code, defines rape and section 376 of this code prescribes its punishment. Section 375 recognises only the female as the victim and not a person belonging to other genders. Neither does it recognises a female as a perpetrator. Thus, a person other than a female cannot aver rape under this section. But an offence can be made out under section 377. The Supreme Court reaffirmed this in case of Navtej Singh Johar v. Union of India[5] where the Court observed that the phraseology of Section 377 is gender-neutral and while that of Section 375 is female-oriented. The Court said: “Section 377 IPC, unlike Section 375, is a gender-neutral provision as it uses the word ‘whoever’ ”. 
The Exigency of having a Gender-Neutral Rape Law
Till now we have seen that the rape law in India is moulded in a woman-centric way, rather than in a victim-centric way. This is problematic because the sexual crimes beyond the ‘traditional’ and heteronormative spectrum are rampant these days and the absence of a legal framework to this regard, leaves their victims helpless[6]. This was also argued before the Supreme Court in Criminal Justice Society of India vs Union of India[7] where the petitioner said:
Crime has no gender and neither should our laws. Women commit a crime for the same reasons that men do. The law does not and should not distinguish between criminals and any person who has committed an offence is liable to punishment under the Code[8].
The court found merit in this petition and left it for the Parliament to make laws in regard.
If we analyze the situation, we will find that this void in the law has not only victimized the people of other genders but women also. It is because the section 375, does not take into account the non-consensual sexual assault inflicted on a woman by a woman, on a man by a woman, on a man by another man, on transgender by another transgender or a man or woman. Among them also, the transgender community is most aggrieved[9].
The transgenders are sequestered from point of view of victims of rape under existing penal laws. This has resulted in their widespread exploitation. Incidences have occurred time and again when they are subjected to sexual harassment and the crime often goes unchecked because of their non-acceptance and societal pressure. According to the UNDP’s Report on Hijras/Transgender[10], 2010, 46% of transgenders in India were reported to be raped in the year 2009 and 44% were reported to be physically abused. This report clearly shows the plight of the transgender community in the world’s biggest democracy. Even the SC in National Human Rights Commission v. State of Arunachal Pradesh[11] has emphasised that homosexuals, transgendered and transsexual persons be covered by the rape law.
The condition of male victims is also deplorable. Male rape is covered as sodomy under Section 377 IPC. However, such incidences often go unreported because the concept of masculinity and male vanity prevent male victims from coming forth and reporting such crimes. According to National Human Rights Commission, incidents of sexual abuse in Indian prisons has been one of the top reasons for the inmates committing suicide.
Moreover, it is seen that sexual assault is not only an act of lust and desire but also a manner of showing dominance or superiority of one caste, class, religion, community over the other.
Considering the above factors, the Law Commission of India in its 172nd Report[12] on Review of Rape Laws in the year 2000, proposed for gender-neutral by substituting the definition of ‘rape’ with that of ‘sexual assault’. Here, the term ‘sexual assault’ is a gender-neutral term. Later, the Justice Verma Committee[13], which was formed to suggest reforms in the criminal law in year the 2013, recommended a gender-neutral law for the victim but a gender-specific law for the offender.
Procedural Advantages of a Suit under 375 over 377
Code of Criminal Procedure (Amendment) Act, 2008[14] has bought following amendments in the filing, investigation and trial of offences registered under section 375 IPC[15].
  • A provision has been added to section 157 CrPC according to which the recording of the statement of the victim shall be conducted at the residence of the victim or in the place of her choice and, as far as practicable, by a woman police officer in the presence of her parents or guardians or near relatives or social worker of the locality.
  • The amendment to section 309 CrPC added a proviso that the inquiry or trial shall, as far as possible, be completed within a period of two months from the date of commencement of the examination of witnesses.
  • The amendment to section 327CrPC allows an in-camera trial to be conducted, as far as is practicable, by a woman judge or magistrate.
  • It has inserted a new section 357(A) CrPC i.e. the victim compensation scheme. All state governments in consultation with the central government are to prepare a scheme for victim compensation.
All these victim-centric provisions are available only when a complaint is filed under section 375 and not under section 377. Thus, men and transgenders are segregated form these benefits.
Gender-Neutral Rape Law: Non-Violative to Art 15(3)
Article 15(3) empowers the state to make special provisions for women and children. In this regard, the rape laws in India are formed in a women-centric way. These days, however, when a similar crime is prevalent against other genders also, it is time, to evolve the rape laws in a victim-centric way. By doing so, the victims belonging to other genders can also seek remedy under the present law. Also, such a step will not be violative of Article 15(3) as it will merely expand the scope of section 375 to cover other genders, and in no way will infringe upon the protection given to women. Moreover, such a law will be in nexus with the spirit of the Constitution, which guarantees the right to life to every citizen.
Conclusion
Considering the present-day scenario, it is submitted that rape laws must be amended to treat all the genders alike. It is because once the element of consent is taken out of the dynamics of a physical relationship, any person regardless of their gender or sex is subjected to sexual violation or rape. The Parliament must amend the present law to attune it with Article 14, 15 and 21 of the constitution as well as the reports submitted by the Law Commission and Justice Verma Committee.

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REFERENCES 

[1] Indra Sawhney v. Union of India AIR 1993 SC 477

[2] Chiranjit Lal v. Union of India AIR 1951 SC 41

[3] AIR 1951 Hyd 11.

[4] Dr J.N. Panday, Constitutional Law of India 143 (54 ed. 2017).

[5] (2018) 1 SCC 791.

[6] http://jtl.columbia.edu/why-heteronormativity-makes-our-rape-laws-problematic-the-dilemma-of-the-transgender-community/

[7] Writ Petition (Civil) No. 1262/2018

[8]Arguments on the behalf of the petitioner, Criminal Justice Society of India vs Union of India Writ Petition (Civil) No. 1262/2018 Available at https://www.livelaw.in/pdf_upload/pdf_upload-357321.pdf

[9] https://www.livemint.com/Politics/mQAawFlpYjNVoeVEtgHnhL/Plea-seeking-genderneutral-rape-law-filed-in-Supreme-Court.html

[10]https://www.undp.org/content/dam/india/docs/hijras_transgender_in_india_hiv_human_rights_and_social_exclusion.pdf

[11] (1996) 1 SCC 742

[12] http://www.lawcommissionofindia.nic.in/rapelaws.htm

[13]https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf

[14] https://bombayhighcourt.nic.in/libweb/actc/yearwise/2009/2009.05.pdf

[15] https://ijme.in/articles/legal-changes-towards-justice-for-sexual-assault-victims/?galley=html#seven

ABOUT THE AUTHOR

 

Shashwat Bhutani is a 3rd-year student of B.A. LL.B( Hons) from Faculty of Law, University of Allahabad. He has a keen interest in constitutional and criminal law.  He is an avid writer who dreams to become a judge one day.

 

In Content Picture Credit: The Swaddle

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