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EXAMINING THE SCOPE OF GENDER NEUTRALITY IN RAPE LAWS A CASE COMMENT ON PRIYA PATEL V. STATE OF MADHYA PRADESH
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EXAMINING THE SCOPE OF GENDER
NEUTRALITY IN RAPE LAWS A CASE COMMENT ON PRIYA PATEL V. STATE OF MADHYA PRADESH
AUTHORED BY - TEJASVINI
HARITH
Introduction
Conversations
on rape in India are necessary. In the year 2021 alone, India registered 31,677 cases of rape. In the year 2020, it was
28,046.[1]
With regards to crimes against women, rape is
at fourth place However, these figures, as reported by the National
Crime Records Bureau are potentially
incomplete. The inhibitions are with respect to the demography of the data
group. The rape laws of India are designed as a crime attributing roles
to each gender.
The man playing the part of
the perpetrator and the woman playing the part of a victim. Is it really a
stretch of the imagination to consider
the offence of rape beyond
this framework? The short answer
is no. Rape is a violation of a person’s bodily autonomy. And that is
not restricted to gender. Neither as
a perpetrator nor as a victim. The Indian Judiciary stumbled upon one such case
which begged to redefine rape beyond its narrow scope. This was the case of Priya Patel v. State of
M.P.[2] However, the verdict was less than
admirable. Through this piece of writing, I will highlight the deficiencies in the not just the judgement, but
also the laws that seek to protect victims
of rape. I shall also attempt to make a case to expand the definition of rape
beyond the present paradigm as a
means to protect the bodily autonomy of people who do not conform to the same.
The Case of
Priya Patel v. State of Madhya Pradesh
A woman was returning home from a sports meet via Utkal Express. At the station,
she met one Bhanu Pratap
Patel who claimed
to have been sent by her father
to pick her up. Feeling
feverish however, she accompanied him to his house. This is where she was raped. While she was being raped, the appellant Priya Patel witnessed
the incident. Despite the pleas of the woman to be saved, the appellant slapped her, shut the door, and left the
place. Bhanu Pratap Patel was charged under
Section 323 and 376 while the present
appellant under Section
323 and 376(2)(g).
The Revision
before the High Court
of Madhya Pradesh
The
validity of the charges against Priya Patel was contested in the High Court of
Madhya Pradesh via a revision.
The High Court held that although a woman may not be charged for the
commission of rape, she may be prosecuted under the offence
of gang-rape if she facilitates the same. The court reasoned
that it was in accordance with Explanation 1 of the concerned section.
The Verdict
of the Supreme Court of India
The Supreme Court felt differently from the High Court. One must note
however, that they relied on no precedents, scholarly articles, journals,
or other legal
texts rather, they relied more upon interpreting the literal text of the
law which thus, provided for the following judgement.
Firstly, they held that rape is an act performed by a ‘man’ upon a
‘woman.’ As a result, any notion to
the contrary was not considered. This is in line with Section 375 which,
verbatim, states, “Rape—A man is said to commit “rape” who,
except in the case hereinafter excepted, has
sexual intercourse with a woman under circumstances falling under
any of the six following descriptions:
—xx xx xx xx xx
Explanation. —Penetration is
sufficient to constitute the sexual intercourse necessary to the offence
of rape”[3]
As per Section 376:
“(2) Whoever, -- xx xx xx xx xx
(g) commits gang rape, shall be punished with rigorous
imprisonment for a term which shall not be
less than ten years but which may be for life and shall
also be liable to fine:
Provided that the court may, for adequate
and special reasons
to be mentioned in the judgment, impose a sentence of imprisonment of
either description for a term of less than ten years, Explanation I.--Where a woman is raped by one or more in a group
of persons acting in furtherance of
their common intention, each of the persons shall be deemed to have committed gang
rape within the meaning of this sub-section.” [4]
While interpreting the language of Section 376(2)(g), the court declared
that it was “conceptually inconceivable” for a woman to commit rape. To explain this, they zoomed into
the phrase “common intention” within
Section 376 and its interpretation according to Section 34 of the Indian
Penal Code.
As per Section 34:
“Acts done by several persons in
furtherance of common intention. —When a criminal act is done by several persons in furtherance of the common intention
of all, each of such persons is liable for that act in the same manner
as if it were done by him alone.”[5]
Within Section 376(2)(g), the phrase “in furtherance of their common
intention” was construed as the common intention to commit rape. While the court
recognized that the nature of acts in consonance with ‘common intention’ may differ, the court held that a woman cannot be said to have the intention to commit rape, reiterating the notion that it was conceptually inconceivable. Therefore, the charges against the appellant under the Section
376 were dismissed and it was left upon the
trial court and high court to charge
her for abetment to rape.
The Issue with the Priya Patel Judgement
Considering
the uncommon nature of this case, it is astonishing how the verdict delivered
was almost indifferent and lacked
any sense of judicial inquisitiveness. It is curious that the Court did not make a single reference to
precedents, jurisprudential texts etc. The Court failed to go beyond the literal words of the Code and
dusted their hands off the issue in a brief judgement. There is also an unsettled contradiction within the law itself,
that is, Section 376 uses the word ‘persons’ to direct liability in gang rape. This is in contrast
to Section 375 which explicitly uses gendered terms.
Therefore, one may interpret the former as a gender-neutral offence. Yet, the bench paid
little regards to the same.
The
simplicity of the facts seemingly masks the wider debate it is a portal to,
which the judge clearly missed. And that is of redefining rape as a gender-neutral offence.
It is evident that a woman was guilty of having facilitated the
commission of rape, however, she escaped
with little liability
under the penal
provisions of the same. The fallacious nature
of the judgement can be
attributed to not only the lack of imagination on part of the judges but also the inadequacy of the penal
provisions for rape. The following sections thus, strive to challenge the ‘conceptual inconceivability’ of a woman forming the intention to rape.
Assessing the Progress made by Legislation towards Gender Neutrality: A Female Perpetrator Perspective
A case to be noted is State v. Sheeodayal[6] wherin, the judges opined that a woman was capable
of outraging another woman’s modesty, in the year 1956. Though not about
rape, it was a first of its kind
judgement in making a woman liable for the same. For the longest time, the benchmark for rape however, was penile
penetration. In the year 1996 in the case of Sudesh Jhaku v. K.C. Jhaku,[7] the
court reflected upon the inadequacy of the definition of rape. The definition then was restricted only to penile penetration of the vagina.
The contention here was that non-penile penetration, be it with
an object or any other part of the body, of any orifice of the victim, was treated
as less than rape with little regards
to the grievousness of the same. The judge
of the Delhi High Court, Jaspal Singh, also used this opportunity to criticize
the narrow definition of rape and
proposed for the first time, complete gender neutrality of rape laws in India.
The debate to include non-penile penetration was carried
forward in the case of Sakshi v. UOI[8] in
1999, albeit, with respect to protection of minors and women from sexual abuse.
This issue was handed over by the
Supreme Court to the Law Commission which in turn, produced the
172nd Law Commission Report in the year 2000.[9]
The Report was one that proposed complete
gender neutrality of rape laws being driven by the need to protect young boys
from sexual abuse. The Justice
Verma Committee in 2012 was formed following the Nirbhaya
Rape Case. This committee
too, was in favour of extending the definition of rape beyond penile- vaginal
penetration and proposed
gender neutrality in the rape laws of India. These recommendations
guided the Criminal Law (Amendment) Act of 2013 where the definition of rape was finally broadened to include
any form of penetration though retaining the gender specific nature of the crime.[10]
It is also relevant to note that the driving factor for gender neutrality was want to protect minor
boys from abuse.
That manifested itself
into the Protection of Children from
Sexual Offences Act which is gender neutral
with regards to the victim.[11]
Legislation
on rape has made progress since 2006. However, even today, the law fails to recognize that a woman may perpetrate rape
like a man may be the victim, although, the latter has received more recognition than the former. The definition
of rape has expanded beyond penile penetration, yet the law does not recognize a woman can do the same. Furthermore, non-consent of a male in heterosexual intercourse is yet to be
construed as rape in society at large let
alone laws in India. This is owing to another deficiency in the rape laws. And
that is regarding what it means to rape or be
raped.
Redefining Rape Beyond the Paradigm
of Gender Specific Roles of the
Offence
The lack of imagination on part of the Court may
be attributed to how society
is conditioned to perceive
rape. The meaning of rape in India goes above and beyond the violation of
bodily integrity and includes social
connotations of dishonour upon the woman, a violation of her modesty and purity etc.[12] As observed in Rafiq v. State of UP:
“When a woman is ravished [in
rape,] what is inflicted is not merely physical injury, but “the deep sense of some deathless shame.” …
Rape for a woman is deathless shame and must be dealt with as the gravest crime
against human dignity.”[13]
Another case State of MP v. Madanlal, it
was stated that
“[rapes] are crimes against the body of a woman which is her
own temple. These are offences which suffocate
the breath of life and sully the reputation. And reputation, needless
to emphasise, is the richest
jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the “purest treasure”is lost. Dignity of a woman is
a part of her non-perishable and immortal self and no one should ever think of
painting it in clay.”[14]
Viewing rape from this
lens creates an invisible restriction on who is in the position to be a victim and who the perpetrator. It is only
a woman’s honour that is extinguished in rape and it is only a man who possesses the ability to do so. Considering
this interpretation, it becomes harder to accommodate the multi-dimensional nature of rape.
The remedy
lies in redefining rape not as a violation of a woman’s
chastity but as the violation of a person’s
bodily integrity, whoever
the perpetrator or victim may be.[15] As put in the case of Bodhisatwa v. Shubra Chakraborty, the Supreme Court
held that “ rape is a crime against
basic human rights and is also violative
of the victim’s most cherished
of the Fundamental Rights, namely,
the Right to Life contained in Article 21.”[16]
This definition differs
from the above two notions
of rape by virtue of taking a human rights
approach over a socially constructed approach. Ameliorating the social constructs associated with rape is one possible way to bring more forms of
rape within the ambit of the law.[17]
This is an opportunity to hold more open discussions on what rape is and what it is not. Transgressing the personal
space of an individual is rape. No societal constructs, no idealistic framework, just this bare definition is what it means to be raped.
Thus, a female perpetrator, a male victim, a transgender perpetrator, a
transgender victim, homosexual rape would all fall within
this inclusive definition of rape. The ‘conceptual inconceivability’ of a female perpetrator would not find merit in this definition of rape.
The Legacy
of the Priya Patel Judgement
Despite having been laid out by the Supreme
Court of India,
subsequent cases have been skewed
with regards to following this precedent. In the case of State v. Meena Devi,[18] the
Sessions Judge held the defendant
liable under Section 376 of the Indian Penal Code for shoving the prosecutrix into a room and bolting the
door from outside, thereby facilitating the commission of rape. However, in State
of Rajasthan v. Hemraj & Anr.[19] in
the year 2008, the second appellant
was held not guilty by the Supreme Court of India on the exact same principle
of the Priya Patel judgement. The
number of cases on this topic are considerably few and have done little to stir up the nation. Want of
protection against a female perpetrator is a rare issue thus, the penal provisions are relatively
undisturbed. However, had a man performed the exact actions of Priya Patel, he would have been liable under Section
376. There is quite apparently a double standard. The appellant escaped liability solely by virtue of
being a woman.
While the aforementioned sections provide arguments against the ‘conceptual inconceivability’ of a woman forming the ‘intention’ to rape, a pertinent question
would be with regards to the effect of gender-neutral rape laws on society. This is not a novel concept. Over seventy-seven countries
across the world
have gender neutral
rape laws.[20]
These include the likes of the United States of America, the United Kingdom,
Denmark, Sweden and more. Taking
the case of Sweden, the nation amended
the definition of rape to ‘sex without
consent’ in 2018. No ifs and buts. As a result, the conviction rate
for rape rose by over 75%.[21]
Any ambiguity in the minds of the
victims about the legitimacy of their experience was dispelled with this
amendment. Cases like Priya Patel,
though rare, give an opportunity to discuss the feasibility of such changes
within our own country.
However, there are apprehensions. Flavia Agnes in her report Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law raised
justified concerns that the implementation of
gender-neutral rape laws from a female perpetrator point of view would
possibly lead to increased sexual
harassment to an already burdened female population.[22]
It may subject the women to more
unnecessary hurdles in filing rape complaints and be manipulated as another tactic to shift the fault on the victim.
While justified in her concerns, the purpose of gender neutrality in rape laws is to extend the span of justice to
victims of rape who do not conform with
the societal standards and framework of it. Furthermore, her concerns are still
speculative as it does not factor in
the willingness of people to come forth as victims in a non-conforming definition of rape.[23]
The right to preserve one’s bodily autonomy is not restricted to a specific gender.
The laws cannot
be blind to that. In a world where bodily
autonomy is accorded
a higher priority over gendered notions of sex,
Priya Patel, a woman, would have been held guilty of facilitating rape with the intention to do so. The promise of
law is to protect the very citizens who
are governed by the same. According protection to a select group for a
non-gendered offence would go against
the promise of Article 14 being right to equality.[24]
Making the rape laws gender neutral
is a possible path to redefining the patriarchal notions of rape and might even take the bite out of its perception
as a means to establish male dominance and superiority upon a female submissive object.[25]
The judges of the Priya Patel case just
failed to explore the possibilities.
[1] 1, CRIME IN INDIA,
262,(National Crime Records
Bureau 2021)
[2] Priya Patel
v. State of M.P. & Anr, (2006) 6 SCC 263
[3] Indian Penal Code, 1860, §375,
No. 45, Acts of Parliament, 1860
[4] Indian Penal Code, 1860, § 376, No. 45, Acts of Parliament, 1860
[5] Indian Penal Code, 1860, §34 376, No. 45, Acts of Parliament, 1860
[6] State Government, Madhya Pradesh v. Sheeodayal Gurudayal, 1956 CrLJ 83 M.P
[7] Smt. Sudesh Jhaku v.
K.C.J. And Others, 62 (1996) DLT 563
[8] Sakshi v. Union of India (Uoi) And Ors, 1999 CriLJ 5025
[9] ONE HUNDRED AND SEVENTY
SECOND REPORT ON REVIEW OF
RAPE LAWS, (Law Commission of India,
2000)
[10] The Criminal Law (Amendment) Act, 2013, § 9, No. 13, Acts of Parliament, 2013
[11] The Protection of Children from Sexual Offences
Act,2012, No. 32, Acts of Parliament, 2012
[12] Harshad Pathak, Beyond the Binary: Rethinking Gender
Neutrality in Indian Rape Law, 11, Asian Journal of Comparative Law,
367-397, (2016)
[13] Rafiq v. State Of U.P, 1981 AIR 559
[14] State Of M.P v. Madanlal, (2015) 7 SCC 681
[15] Id. at 11
[16] Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty, 1996 AIR 922
[17] McKeever, N. Can a Woman Rape a Man and Why Does It Matter? 13, Criminal Law, Philosophy 599–619 (2019). https://doi.org/10.1007/s11572-018-9485-6
[18] State v. Meena Devi, Sessions Case No.
87 of 2006
[19] State Of Rajasthan v. Hemraj & Anr,
(2009) 12 SCC 403
[20] Anushka Yadav, Gender
Neutrality of Rape Laws, 4 (4) IJLMH Page 2155 - 2160 (2021), DOI: https://doij.org/10.10000/IJLMH.111604
[21] Emma Batha,
Rape conviction rates rise 75% in Sweden
after change in the law, REUTERS,(Oct. 29, 2022, 11:53 PM), https://www.reuters.com
[22] Flavia Agnes, Law, Ideology
and Female Sexuality: Gender Neutrality in Rape Law, 3, Eco. & Pol. Wk., (2002),
[23] Pathak, supra note 11
[24] INDIA CONST. art. 14
[25] McKeever, supra note 1
Article Information
EXAMINING THE SCOPE OF GENDER NEUTRALITY IN RAPE LAWS A CASE COMMENT ON PRIYA PATEL V. STATE OF MADHYA PRADESH
Authors: TEJASVINI HARITH
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/06
- Issue 7
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