Open Access Research Article
SHIFTING PERSPECTIVES: THE EXIGENCY OF GENDER- NEUTRALITY IN INDIAN RAPE LAWS (By-Kriti Gera & Adv. Arun Pratap Singh Rajawat)
Abstract
SHIFTING PERSPECTIVES: THE EXIGENCY OF GENDER- NEUTRALITY
IN INDIAN RAPE LAWS
Authored By- 1. Kriti Gera
2. Adv. Arun Pratap Singh Rajawat
Abstract
The Indian Penal Code has been in force in India’s legal
system for almost 160 years, but astonishingly, a few chronic flaws still
plague the effectiveness of the ancient punishing legislation. Over the last
few decades, India has seen a spike in requests to alter its long-standing laws
and regulations to reflect current citizen perspectives and to meet society’s
current requirements. As a result, the government listened to the people and
made some significant reforms to our socio-legal system, such as
decriminalizing adultery, validating live-in partnerships, recognizing
homosexuality, including the right to privacy as a fundamental right, and so
on.
However, if we were to ascertain the pragmatic
realities of identifying the concept of ‘Gender Neutral” in India ‘s rape laws,
as laid down under sections 375-376 of the Indian Penal Code, 1860, the canons of
‘Equality’ treasured in the Basic Structure of the constitution of India are
not strictly adhered to. Despite the fact the idea of adding gender neutrality
into rape laws has been considered in several suggestive studies and court
precedents, no major progress has been made. Because India lacks comprehensive
legislation to address male on male, female on male, transgender rapes,
identifying the horrible crime of ‘Rape’ as a gender-neutral crime is critical.
This is critical if the country is to evolve as a mature democracy with legal
requirements of fairness, integrity, and impartiality.
KEYWORDS: Gender-Neutrality, rape, crime, equity, uprightness,
impartiality.
Introduction:
Gender-neutrality is a belief that discrimination
between men and women should be eliminated in both legislation and its
execution. It attempts to provide equal rights for all citizens, regardless of
gender, such as equal protection of, under the law equal compensation for equal
effort, and so on. Its goal, from standpoint of Indian Rape Law, is to
eliminate the gender based stereotype associated with rape in the Indian Legal
Environment. Despite the fact that the definition of “Rape” under section 375
of the Indian Penal Code (1860) has been revised several times, it still
corresponds to the traditional understanding of rape, in which the victims and
perpetrators are invariably women and men, respectively. To believe that such a
heinous crime is only done by men defies the truth of the assertion that “Men
can be subjected to rape too.” Gender- neutrality may only be fully realized
when all of its sub-dimensions are carefully catalogued and followed, namely:
1)
Neutrality
toward the victim
2)
Neutrality
toward the perpetrator
3)
Neutrality in
custodial, community, war, and conflict situation
History Of Rape Laws
Rape was never considered a crime against the victim
in the beginning; rather, it was considered a criminal against property, and
the property in question was women a who were meant to belong to their husbands
or fathers. The word “rape” is derived from the latin word “repere”, which
means “to grasp or take anything,” implying property once again. For the crime,
the spouses or fathers were compensated. If you raped a virgin, recompense was
paid to the father, and the victims was married to a culprit, according to
Hammurabi’s code, one of the earliest sets of rules known to a man. If the lady
who was raped was married, she was considered an adulteress and would be
sentenced to death alongside her rapist.
The Hebrews had similar laws, and they took the
concept of an eye for an eye very seriously, therefore the victim’s father was
allowed to rape the rapist’s wife as a punishment for rape. Not all laws,
however, were terrible. Rape against women was recognized as a crime against
the women in celtic law in re-British England, with a distinction drawn between
no permission and being in a situation where you are unable to provide consent,
such intoxication.
These rules, on the other hand, were the exception
rather than the rule in the early rape laws. Rape did not become regarded as a
crime against the victim until the 12th century. The statutes of
Westminster, which were enacted in the 13th century, were one of the
first to authorize the crown to prosecute rapists if the victim’s family
refused to corporate. This was a watershed moment because rape was suddenly
being recognized as a crime against the state as well as against the victim’s
family. Rape was first defined in the early 18th century in
comparable terms to how it is defined today.
For the first time, the International Criminal Court
(IPC) defined rape in the 1860’s. it was described as having sex against
woman’s will or permission, as well as consent obtained by putting the victim
or anybody close to her in fear of death or harm. For the following 100 years
or more, the definition of rape remained constant.
Then, following the Supreme Court’s acquittal of the
culprits in the Mathura Custodial rape case, the rape statutes underwent
significant modifications. The term “custodial rape” was added to the
definition of rape to refer to rapes perpetrated by police officers. The Indian
Evidence Act of 1872, was amended to include 114A as a result of this. This new
section applied to custodial rapes and implied a lack of consent in particular
cases if the victim claimed so. The IPC was amended to include section 228A,
which made it illegal to reveal the identities of victims of certain crimes,
including rape. It also barred victim character assassination. Even though it
was also illegal, character assassination did not entail cross examination.
The victim’s sexual integrity was violated, and she
was further further traumatized as a result. After a PIL petitioned the law
commission to suggest modifications to our rape laws, the Supreme Court took
notice. Section 155(4) of the Indian Evidence Act was amended as a result of
this. Cross- examination of victims was disallowed after the modification.
Pocso Act
The national crime bureau reported a significant
increase in child tape cases between 2001 and 2011. Prior to this, the law
regulating sexual offences against children was statutory rape clause, which
made sexual intercourse with a kid under the age of 16 illegal regardless of
permission. Because the perpetrator in the majority of incidents of child abuse
is frequently someone close to the child, the POCSO (Protection of Children
from Sexual Offences) Act of 2012 was enacted. The police were in charge of looking
after the kid victim during the trial in these circumstances. The act was
gender-neutral, recognizing other types of penetration in addition to
peno-vaginal penetration. The act addressed child pornography, aiding and
abetting child maltreatment, and sexual harassment of children.
Criminal Law (Amendment) Act, 2013
The criminal law (amendment) act, 2013, approved by
the Lok Sabha on March 19, 2013, and the Rajya Sabha on March 21, 2013, amends
the Indian Penal Code, Indian Evidence Act, and the Code of Criminal Procedure,
1973, to address laws relating to sexual offences. The bill was signed by the
President on April 2, 2013, and it was deemed to take effect on February 3,
2013. It was originally an ordinance signed by India’s President, Pranab Mukherjee,
on 3 February 2013, in response to the 2012 Delhi gang rape case protests.
This incident received widespread international
attention and was condemned by the United Nations Equity for Gender Equality [1]and
Women, which urged the Indian government and Delhi to “do everything in their
power to implement radical reforms and other measures to make women’s lives
safer and secure”.
The public, as well as other human rights
organizations and women’s organizations, had been calling for changes to the
existing law dealing to sexual offences. For committed such a horrific crime,
the accused deserved a harsher sentence.
“To ensure its effectiveness, the Act must be
implemented with devoted human and financial resources, as well as clarity in
duties and responsibilities,” Justice Verma said at a UN Women gathering. A law
is only as good as the mechanisms and people who put it into effect. Mindsets
and attitudes must shift if women are to be truly appreciated and valued in
society”.
Reasons For The Enactment:
The national anger over the violent gang rape and subsequent
death of a physiotherapy intern in India’s capital city, New Delhi, was the
driving force behind the passage of the Criminal Law (Amendment) Act, 2013,
which attempted to reform the country’s existing laws surrounding the sexual
offences. The act is regarded as one of the most significant amendments to the
current criminal laws, which include the Indian Penal Code, the code of
Criminal Procedure, and the Indian Evidence Act.
Nirbhaya Case/2012 Delhi Gang Rape Case
A 23-year-old female physiotherapy intern was
assaulted and gang raped in a private bus in which she was travelling with a
male acquaintance on December 16,2012 in Munirka, a neighborhood located in the
southern portion of New Delhi. The victim died as a result of her injuries. The
episode received enormous national and international attention, as well as
strong condemnation, both in India and beyond. Following that, public protests
in New Delhi against the Indian government and the Delhi government for failing
to provide proper security for women erupted, with thousands of protestors
clashing with security personnel. Similar demonstrations took place in major
cities around the country, calling for harsher regulations and more expeditious
justice.
Other facts of the case:
When the victim and her friend voiced their concerns
about the bus’s route to the destination, they were beaten. While the bus was
underway, the woman was raped by all of the males, and her buddy was beaten
unconscious. Both victims were pushed out of the moving bus by their attackers
after being beaten and raped, and were left partially clothed on the side of
the road. After receiving a call from a passerby, a PCR vehicle arrived on the
scene. The injured were transported to Delhi’s Safdarjung Hospital for
treatment.
A medical examination of the woman revealed that she
had been pierced by a blunt instrument, most likely a rod-like device, which
had caused serious damage to the victim’s internal organs. On police
investigation, two blood-stained metal rods were retrieved from the bus, which
medical personel later proved to be the device used for penetration, causing
major injuries to the victim’s uterus, genitals, and abdomen.
The Delhi Police made arrests in the case within a day
of the crime being committed, and all six offenders, including a minor were
apprehended.
Consequences
After the gang-rape event, there were widespread
demonstrations. There were protest movements both at home and abroad, all
calling for tighter laws to prevent violence against women. Because of the
awful nature of the crime committed, this occurrence gained a lot of attention.
As a result of the statewide demonstrations, the Government of India
established the Justice Verma Committee to recommend modifications to the
existing legislation.
The Justice Verma Committee
On December 23, 2012, a three-member committee led by
former chief Justice of the Supreme Court Justice J.S. Verma was formed to
recommend changes to the criminal law that would allow criminals convicted of
sexual assault against women to be tried quickly and receive harsher penalty.
Justice Leila Seth, a former judge of the Delhi High Court, and Gopal
Subramaniam, a former Solicitor General Of India, were the other members of the
committee.
The committee urged the public in general, and eminent
jurist, legal professionals, NGOs, women’s groups and civil society in
particular, to share their views, knowledge, and experience in proposing
possible amendments to the criminal and other relevant laws to allow for faster
investigation, prosecution, and trial, as well as enhanced punishment for criminals
accused of sexual assault of an extreme nature against women.
Asifa Bano Rape Case
A group of men raped and killed an 8-year old girl
named AsifaBano in the Kathua area of Jammu and Kashmir in January 2018. The
main defendant was a priest from the temple where the rape took place. This
terrible event sparked nationwide outraged and calls for tougher restrictions.
This case was intensely politicized on communal lines against the backdrop of
political upheavals in Jammu and Kashmir. As a result of this, the 2018
criminal amendment act was enacted, which primarily amended POCSO because the
rape was committed against a kid. The statute made the death penalty available
for rape of a juvenile under the age of 12 years old, with a minimum sentence
of 20 years in prison. In the IPC, a new section was included that dealt with
rape against a Juvenile under the age of 16, with penalties ranging from 20
years to life imprisonment.
Need For Criminal Amendment Act, 2018
According to a research by the “Thomson Reuters
Foundation”, sexual violence, human trafficking, child labor, underage
marriage, and female foeticide make India the most dangerous country for women.
In 2012, the National Record Crime Bureau (NRCB) [2]documented
24,923 rape crimes across India, according to its annual report for the year
2013. The culprit was discovered to be a relative of the victim in 98 percent
of the cases. Assault has a very low per capita rate and, as a rule, it goes
unreported. However, the rape instances such as the Kathua rape case and the
Unnao rape case sparked considered public anger. And a sense of censure leads
to media attention and public protest in the name of justice. as a result of
the increased willingness to disclose rape incidents, the Indian government has
made revisions to the current penal legislation. As a result, criminal
amendment act was absolutely necessary.
Features Of Criminal Amendment Act, 2018
This act makes significant reforms to our penal laws
to protect girls from the horrible crime of rape. They are as follows:
1)
Anyone who
commits rape is sentenced to a minimum of 10 years in prison; previously, the
minimum sentence was seven years.
2)
Anyone who rapes
a girl under the aged of 16 will be sentenced to a minimum of 20 years in
prison.
3)
If a prison rapes
a girl under the age of 12, he or she will be sentenced to 20 years in prison,
life in prison, or death penalty.
4)
If the rape
crime is committed against a girl under the age of 16, the accused shall not be
given anticipatory bail.
5)
Convicted
persons are obligated to recompense the victim, with the money going toward the
victim’s medical bills and rehabilitation. And the remuneration will be fair
and equitable.
6)
If a police
officer is found guilty of a rape, he or she will be sentenced to a minimum of 10
years in jail, regardless of where the crime occurred.
7)
In the case of
rape, the police are required to conclude the investigation within two months
of the FIR being filed.
8)
In the case of
rape, the time limit for filing an appeal is six months. The law stipulates
that anyone guilty of gang rape of a woman under the age of 16 will be
sentenced to life in prison and fined.
Characterizing Rape: The Male Perpetrator Paradigm
To properly assess gender neutrality in rape
legislation, it is necessary to first define the breadth of the crime and the
impact it has on the victim. The Indian Penal Code (IPC), section 375, plainly
states:
Rape- A man is said to have committed “Rape” if he has
sexual intercourse with a woman under any of the six categories below, save in
the situation subsequently excepted:
The definition is followed by sub-clauses that list
the circumstances in which the crime of rape can be committed. The legal
decisions on Indian rape laws reflect a relatively traditional understanding of
rape, in which it is considered an assault not just on a woman’s body, but also
on her modesty, chastity and honour.
However, the view point subtly rests on a patriarchal
foundation, undermining the validity of arguments aimed at neutrality in terms
of the victim’s gender, autonomy and bodily integrity. [3]
Unfortunately, the Indian Penal Code’s rape provision
predetermines the gender of both the perpetrator and the victim, leaving little
room for any kind of liberal interpretation. On the basis of sexual
stigmatization, such a legislative requirement is not only arbitrary and
ambiguous, but also unreasonable and discriminatory. The fact that only a man
is capable of committing rape and only a woman can be a victim of the crime
gives women, as well as other male perpetrators who target macho victims, an
unfair advantage. Rape is considered an explicit patriarchal crime under
Section 375 of the IPC, deriving from the outrageous misuse of masculine
authority and privilege. However, as a rapidly developing nation with the
world’s largest democracy, we must adopt our laws to meet the demands of an ever-
changing society in order to meet the dynamic nature of the law.
Male-On-Male Rape
Navtej Singh Johar and Ors. V. Union of India [4]The.
Secretary Ministry of Law and Justice 2018 decriminalized section 377 of the
Indian Penal Code (unnatural offences-‘homosexuality’), but there is still no
widely available legal remedy to deal with the adult male to male rapes in
India. While male child rape victims are protected under the Protection of
Children from Sexual Offences (POSCO) Act of 2012, adult male rape victims are
denied legal services or aid because the Indian Penal Code’s judicial system is
unprepared to deal with such crimes.
Male-male rapes, as well as female-female rapes in
jails, are common, according to several studies, and the vast majority of such
occurrences go undetected. Only around 1 in 10 male-male rapes is ever recorded[5],
according to American psychologist Sarah Crome.
Female-On-Male Rape
Female-on-male rapes have received far less attention
than other forms of sexual assault. According to one research, 23.4 percent of
women and 10.5 percent of males said they had been raped, while 6.6 percent of
women and 10.5 percent of men said they had been the victims of attempted rape.
[6]
There has been no relevant background or official
research data available in India to assist us in estimating the statistical
frequency of such crimes. Unsurprisingly, even if a male rape victim attempts
to file a legitimate FIR against a woman for rape, he is likely to be scoffed
at by police personnel, and he may experience severe social rejection and
emotional trauma. A victim of a crime is a victim regardless of caste, color,
creed, race or sexual orientation. On the contrary, it is clear that male rape
victims’ colors and cries are nothing more than unspoken opinions that are
never brought to justice. such implacable indifferences between genders
eventually leads to the emergence of a society dominated by pseudo-feminism.
Transgender Rape Laws In India
The Gender-Equality Principles in rape legislation,
neutrality encompasses justice beyond the two widely recognized genders; it
also calls for the inclusion of transgender individuals. Currently, India lacks
specialized rape laws for rapes of trans people, which is a surprise
contradiction of the supreme court’s historic verdict in the NALSA [7]case
in 2014, in which the SC took proper cognizance of the transgender community’s
rights and remedies.
On December 5, 2019, the Transgender Persons
(Protection Of Rights) Act, 2019 went into effect, with the goal of elimination
ostracism and prejudices towards transgender people and putting them on an
equal footing in the eyes of the law. However, some essential legal elements
relating to sexual offences against transgender people were left out of the
act, and those glaring gaps have yet to be filled.
Furthermore, the 2019 Act has elements that,
paradoxically, seek to foster rather than eliminate racial attitude. The Act’s
section 18(d) reads as follows:
18. Penalties and offences
Whoever- (d) harms or injures or endangers the life,
safety, health, or well-being of a transgender person, whether mental or
physical, or tends to do act such as physical abuse, sexual abuse, verbal and
emotional abuse, or economic abuse shall be punished by imprisonment for a term
not less than six months but not more than two years, as well as a fine.
The irony of this clause is that whereas a similar
conduct against a woman could result in severe penalties, the same offence
against a trans person’s body and dignity is classified as a “petty offence”.
The insensitivity supports a “gender-specific edict” and is a vivid example of
how our country’s criminal legislation violates the principles of equality
enshrined in the doctrine of our constitution’s “Basic Structure[8]”.
As a result, it is critical to identify the seriousness of sexual offences
against transgender people and to treat such offences in accordance with the
Indian Penal Code, 1860.
Gender Neutrality In Rape Law Vis A Vis Human Rights
The right to equal protection under the law is a
cornerstone of basic human rights that applies to everyone, regardless of
discriminatory bias. As a result, it is critical to state the argument that
existing rape laws should be changed to be gender-neutral from human rights
perspective.
The Supreme Court, in the cases of Bodhisattwa. V.
Shubhra Chakraborty and Narendra Kumar V. State (NCT of Delhi[9]),
duly acknowledged the dispute that the criminal offence of rape infringes on an
individual’s basic human rights enshrined in the Indian Constitution- The Right
to Life and Personal Liberty. Nonetheless, such a heinous crime infringes on
the human Rights of men or any human being in general, regardless of whether
they are legally able to be raped.
The 1948 Universal Declaration of Human Rights (UDHR)
serves as the foundation for contemporary international human rights law.
Article 2 of the UDHR states that everyone has the right to the rights outlined
in the declaration, regardless of race, religion, or nationality (including
gender). Every human person is equal before the law and is entitled to equal
protection under the law, according to article 7 of the declaration. The
declaration’s gender-neutral pronunciation backs up the claim that every
heinous crime should be regarded equally in eyes of the law.
Custodial Reflections
In a 1992 [10]investigation,
the public was made aware of the common practice of homosexual rapes/gang-rapes
in jails. Such examples demonstrate the inability of prison administrations and
authorities to treat inmates with empathy or even rudimentary human integrity.
While these sexual encounters can likely spread infections and dangerous
sexually transmitted diseases among prisoners, the emotional ordeals and
ruthless physical anguish associated with such situations linger for a long
time in the mind of defenceless. According to a report published in 2018, [11]the
suicide rate in Indian prisons is 1.5 times higher than the general population.
Ram Singh, one of the commanders accused in 2012 Delhi
gang-rape case, was discovered hanged at the Tihar Jail in New Delhi on March
11, 2013, as a result of claimed pitiless sexual victimization by other
inmates. Ram Singh’s killing is a stark representation of the untold truth that
lies behind the bars, highlighting the prisoner’s inability to stand up for
their rights while being subjected to such blatant crimes on a regular basis.
In 1981, the People’s Union for Civil Liberties (PUCL) stated their concerns
about the situation in Tihar revealing:
“when a young boy enters, the inmates have been known
to bid on the youngster’s price. The price is expressed in ‘Bidis,’ soap, or
charas. Frequently, captives have been segregated into camps and the camps have
fought over who would get the new enterant”.
Concluding Remarks And Recommendations
Rape is a deplorable and extremely harmful crime that
is committed by both men and women. Men are invulnerable, it is always a guy
who commits rape, men are unable to grasp the physical misery or mental ordeals
suffered in rape, and other legendary conceptions surrounding rape are nothing
more than faulty assumptions devoid of any reasonable rationale. Several European
countries, including England, Scotland, and Ireland have made significant
changes to their criminal laws to support a gender-neutral approach to the
crime of rape.
Although Article 15(3) of the Indian Constitution of
1950 allows the government to make special provisions for women and children,
it does not limit the government’s ability to protect the lawful interests of
men or transgender people, nor does it limit the government’s ability to grant
them equal socio-legal status in serious crimes. The argument that there isn’t
enough statistical proof against male or transgender rapes is incorrect,
because under-reporting of such occurrences does not rule out the possibility
of them happening in real life.
The following are some suggested proposals for developing
a gender-neutral approach to rape law in India:
1)
Recognizing the
existence of male and transgender rapes in India and revising section 375 of
the Indian Penal Code, 1860 in a gender-neutral manner.
2)
Discarding the
gender-based stigmatization of rape and acknowledging that both the perpetrator
and the victim can be of any gender.
3)
Striking a
balance between the rights and obligations of men, women and transgenders in
order to avoid any conflicting interests or possible legal privilege
exploitation.
4)
Ensuring that
inmates have equal protection under the law for their human rights, and
verifying that sexual violence against them is dealt with maximum zeal and
thoroughness.
5)
Proposing
comparable punitive laws for accomplices and abettors in cases of aggravated
sexual offences, regardless of the accomplice’s or abettor’s gender.
6)
Finally, we must
educate and sensitize our country’s youth about sexual health, mutual consent,
and safe sex practices so that they learn to appreciate people of all genders
and treat them equally. This phase will verify the development of a civilized
society with educated young minds who variety, administration, and compassion
for all community members, resulting in lower crime rates and less horrible
sexual offences. As a result, education may be the most significant condition
for facilitating the construction of a peaceful and harmonious construction
free of criminal annihilation.
Gender-neutrality in rape law does not argue for
completely desexualizing the crime of rape; rather, it intends to gradually
widen the scope of the Indian Penal Code in order to build an unbiased approach
to the existing under inclusive rape legislation.
Recognizing that rape perpetrators and victim do not
belong to any one gender in an urgent need in this rapidly changing culture in
the twenty-first century, and the sooner the better. In the words of former
Associate Justice Wiley Blount Rutledge of the United States Supreme Court,
“Equality before the law in a true democracy is a matter of right.” It can’t be
a question of charity, favor, grace, or discretion.”
Published Paper
Author Details
Author Name: Kriti Gera & Adv. Arun Pratap Singh Rajawat
Title: SHIFTING PERSPECTIVES: THE EXIGENCY OF GENDER- NEUTRALITY IN INDIAN RAPE LAWS
DOI Link:: https://www.doi-ds.org/doilink/05.2022-92564736/Kriti Gera & Adv. Arun Pratap Singh Rajawat
Email Id: Kriti Gera- kritigera99@gmail.com, Adv. Arun Pratap Singh Rajawat- aps007rajawat@gmail.com
Article Information
SHIFTING PERSPECTIVES: THE EXIGENCY OF GENDER- NEUTRALITY IN INDIAN RAPE LAWS (By-Kriti Gera & Adv. Arun Pratap Singh Rajawat)
Authors: Author Name: Kriti Gera, Adv. Arun Pratap Singh RajawatTitle: SHIFTING PERSPECTIVES: THE EXIGENCY OF GENDER- NEUTRALITY IN INDIAN RAPE LAWS, Adv. Arun Pratap Singh RajawatEmail Id: Kriti Gera- kritigera99@gmail.com, Adv. Arun Pratap Singh Rajawat- aps007rajawat@gmail.com
- Journal IJLRA
- ISSN 2582-6433
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