Daniyal Qureshi | Symbiosis Law School Pune | 12th June 2020
The principle penal legislation in the country is the Indian Penal Code of 1860 (IPC). The IPC is a colonial era legislations and reeks of European Colonial jurisprudence and statesmanship.
Numerous laws in the IPC reinforce colonial thinking and aim to facilitate colonization and control of colonial land for western overlords. Unfortunately this penal legislation has survived the test of time in India. However, in today’s post-modern world the IPC poses itself as outdated and incompatible with contemporary ideas of liberty one such being the freedom and fluidity of gender. The penal code is not only inherently but also expressly confined to binary heterosexual genders. Section 8 defines gender to be “male” and “female” exclusively. Perhaps the greatest specimen of this gender based discrimination in law is the fact that sexual crimes against a “child” are criminalized in a gender neutral manner under the Protection of Children from Sexual Offences 2012 by using the term “any person” in Section 2(1)(d) of the statute. And yet somehow this universality disappears once a person hits majority.
In the case of Criminal Justice Society v. Union of India 2018[1], even the Supreme Court found merit in the idea of requirement and necessity of gender neutral rape laws and urged the legislature to step forward and fulfil its duty to the people.
Gender neutral scrutiny of Section 375 – Indian Penal Code.
The traditional notion of rape in common law is rested on non-consensual penile-vaginal intercourse. In India instances of non-heterosexual non-binary sexual abuse are far more common and they go unreported due to the state sanctioned social stigma and prejudice of the non – heterogenic sexual intercourse. Or in simply words, they go unreported because its impossible to report them because there is no legal recourse.
Section 375
- “A Man”
The provision opens to define rape with the phrase “A man is said to commit rape”. Expressly confining the capability to commit rape to the Male gender is unjustly abrogative and reflective of the deep rooted patriarchy in the colonial mentality. While patriarchy has not been exclusive to colonial law-making, however, patriarchy enforced by law so extensively is perhaps the only example of the modern age.
This definition of rape is rooted in patriarchy and sanctions a engaged superior hierarchy of the sexes in the social order. By limiting the capacity to rape to male, it sanctions the idea that the “male” gender is the superior sex and incapable of being raped by any other gender.
- “Of a woman”
While sexual abuse of women is a spectre that plagues mankind and rape is the fourth most common crime against women in India according to the National Crime Records Bureau. However, no records of sexual crimes against any other gender are created or recorded. And simply because there is no available statistics in India, it doesn’t mean that sexual crimes are gender specific in reality.
This omission is neither coincidental nor mistaken, it is specifically designed to be so. Rape being an offense that can only be committed upon a woman, upon a person of the female gender. The stigma felt from being a victim of a sexual crime is devastating in the society. This idea becomes sanctioned by a sense of sexism that a masculinity is too strong to be violated and a sexual crime is considered a violation of the character or victim rather than the perpetrator; a great woe of contemporary jurists and activists.
This idea also establishes the exclusion of the queer genders from the ambit of protection of the law.
Rape against the third-gender.
“Transgender”, the third gender in India by virtue of the judgement delivered by Justice K.S. Radhakrishnan in National Legal Services Authority v. Union of India 2014[2]. The definition of Transgender by the Transgender Persons (Protection of Rights) Act 2019, is a person whose gender is different from the gender they were assigned at birth.
The Act provides that a transgender person can avail a certificate of their gender for the purpose of interaction with the state and their identification. However, this certificate confines the legal capacity of a person to convert their gender to the third gender only. This means that a person born as a man has the capacity to identify as the third gender but not as a female legally. While this is an inherent shortcoming of the act, this offers no protection to transgender persons against sexual crimes.
It is not uncommon to come across incidences of sexual violation against transgenders. While the The statute provide four specific offences. Section 18 (d) lays down the liability of ‘sexual abuse’ and notably not rape, against a transgender person to be not less than 6 months and upto 2 years only. y contrast the punishment under Section 375 would be a minimum of 10 years.
Section 377
The purpose of this provision is to criminalise any and all sexual activity which is not penile-vaginal intercourse. In effect it criminalizes all types of extra heterosexual activity. For example while, it does criminalize bestiality or forcefully sodomy, the provision opens with the phrase “ Whoever voluntarily”, thereby criminalizing acts such as consensual homosexual intercourse. Therefore, it expressly ousts itself from offering protection from any sort of forceful sexual exploitation. Now with the forthcoming of the judgment in Navtej Jauhar v. Union of India[3] it is imperative for the legislature to look into the laws which confine sexuality to genders and which relate to sexual offences and revise them to be gender neutral. This is due to fact that since the effect of the judgment is to decriminalize consensual homosexual sex, the question begs itself; Why shouldn’t non consensual homosexual sex be punished as rape?
Sexual Assault
Throughout the entirety of the Penal Code the term ‘Sexual Assault’ has not been defined per se. Section 354 comes close to achieving a similar effect but confines its concern to the female gender only by it’s use of the phrase “to woman”.
Section 354A criminalises sexual harassment however, the ambit of this provision too is limited to criminalizing acts committed by a person of the male gender by it’s use of the phrase “A man committing”. Upon a further scrutiny of Section 354A it is abundantly clear that it does not aim to define or occupy the lacuna left by the absence of the provision for ‘sexual assault’.
CRIMINAL LAW (AMENDMENT) BILL 2019 – THE WAY FORWARD.
On 12th July 2019 K.T.S. Tulsi a senior lawyer and private member of the Rajya Sabha, who is also the president of the Criminal Justice Society, the plaintiff in Criminal Justice Society v. Union of India 2018, introduced the said bill in the upper house of the Indian Parliament.
The journey towards gender neutral sexual offences law has been on for a considerable amount of time. The 172nd report of the law commission in 2000 recommended gender neutrality in law. Subsequently the Courts have on numerous occasions and in multiple cases suggested to the parliament that measures to create gender neutral rape laws be enacted. Very recently, on 4th July 2019 in before the Delhi High Court, an affidavit filed by the Ministry of Home Affairs vehemently opposed gender neutral rape laws. The centre contested that the rape law cannot be made gender neutral since it is women who suffer tremendously and the law is designed to protect rape law.
8 days after that incident this bill was introduced in the Rajya Sabha. The bill however did not see assent.
Highlights of the bill.
The underlying theme of the bill was gender neutrality of the rape laws in India. The most notable features of the bill were :-
- Amendment to definition of Gender.
The bill sought to cease the exclusivity of definition of gender as ‘male’ and ‘female’ under section 8 of the penal code.
- Introduction of definition of ‘Modesty’
Modesty is a cultural phenomenon and subject to societal factors. The Indian societal setup has not displayed itself to be very friendly to the concept of gender fluidity or freedom of self identification or even the prospect of a third gender despite the ‘Hijras’ being around for centuries and being an integral part of ceremonies and rituals in many cultures across the country. Persecution of the minority genders and atrocities are outrageous, state sanctioned an ample. Therefore, it is vital to define ‘Modesty’ per se for the protection of the third gender. Modesty being defined as:-
Modesty is an attribute which attaches to the personality with regard to commonly held belief of morality, decency and integrity of speech and behaviour, in any man, woman or a transgender
- Amendments to sexual offences.
The bill aims to effectively dismantle the gender specificity of sexual offences by replacing words such as “Man” and “Woman” with “Any person”. The bill aims to create rape as a gender neutral offence and dismantles the idea that the perpetrator or victim must be of any particular sex.
- Introduction of ‘Sexual Assault’ as an offence
The bill aims to insert an amendment section 376A to create the offence of sexual assault defined as
if any person:— (a) intentionally touches the genital, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person, without the other person’s consent except where such touching is carried out for proper hygienic or medical purposes; or (b) uses words, acts or gestures towards another person which creates an unwelcome actionable threat of sexual nature or result in any unwelcome advance;
Conclusion
Gender neutrality in rape laws is a real need of the hour in light of the latest progressions made in the field of gender justice after the judgements in NALSA v. UoI, Navtej Jauhar v. Union of India, Joseph Shrine v. Union of India. These judgements make clear the importance of gender freedom in our country and that it is imperative that the law take cognizance of these changes in the society and its people. Afterall, it is the very function of the legislature to take care of the social changes and enable the evolution of the law with the society.
However, the current government has made it clear it’s stand of gender neutrality and its take on the phenomenon of gender fluidity. The same is reflected in the Transgender Persons (Protection of Rights) Act 2019 which instead of providing meaningful legal safeguards to the transgenders of India commands an entire gender to obtain a certificate of their existence from the state.
Gender Justice is not the idea of protecting the weaker sexes. It is the idea that there are no weaker sexes. The idea to empower the gender identity of all people and give them the freedom to identify themselves. The journey for gender justice in India is far from finished yet.
[1] MANU/SCOR/36404/2018, W.P.(C) No. 1262/2018
[2] (2014) 5 SCC 438
[3] AIR 2018 SC 4321
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