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The Delhi High Court today issued notice to the Central government in a public interest litigation challenging the Constitutional validity of Sections 375 and 376 of the Indian Penal Code and seeking framing of gender neutral rape provisions.
A Bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar heard the petition filed by one Sanjjiiv Kkumaar, before seeking the response of the Centre in the case.
Kkumaar in his petition has contended that rape laws in 63 countries are written in gender-neutral language.
“…in one study, out of the 96 countries studied, 63 were found to have rape or sexual assault laws written in gender-neutral language, 27 had rape laws that were completely gender-specific (i.e., the perpetrator was defined as male and the victim as female) and 6 had partly genderneutral laws (the perpetrator was defined as male and the victims could be male or female) Annexure P-2
In most progressive nations, Rape(Sexual Assault) are Gender Neutral with respect to both Perpetrator as well as Victim of Rape/Sexual Assault.”
Th petitioner has relied on data from various countries to buttress his arguments that rape and sexual assault can be gender neutral. Regarding the argument that making rape laws gender neutral could undermine the fight against patriarchy, the petitioner submits,
“…it becomes very difficult to accept that there is a single reality in rape; that is, men rape women and men can never be victimized, or if they are, this act has a meaning so different for men that it cannot be labelled as rape. Another aspect of the backlash argument is the suggestion that gender neutrality undermines feminist conceptions of patriarchy.
As such, it is submitted that the recognition of male victimization does not undermine the notion of patriarchy; it merely acknowledges that sexual coercion can also, in a minority of cases, exist in other contexts. To deny this reality creates the danger of theoretical objections to gender neutrality in rape, overriding the reality of rape and sexual assault outside the male-on-female paradigm.”
It is also contended that critics fail to acknowledge that gender-neutral reforms are not designed to make gender irrelevant in the understanding of sexual violence.
“…in fact, gender is central to any understanding of how and why sexual violence occurs. What is clear, however, is that while females are the main victims of sexual violence and males the main perpetrators, one still has to consider how sexual assaults beyond the male-on-female paradigm are to be labelled by the criminal law.”
The petitioner submits that the very notion of patriarchy is the reason why men don’t come out in open to report sexual crimes against them.
“If a male alleges that female raped him, he is not seen as a “Real Man” because the stereotypical patriarchal assumption of “men are superior and stronger to women” comes into the picture. The same “male domination” and the notion of patriarchy is, in fact, the very reason males do not come out of the closet to report rapes.”
Regarding Constitutional guarantees, the petitioner has submitted,
“Article 14 enshrines the right to equality before law and Article 15 provides for prohibition of discrimination on the grounds of sex. Men, therefore, must be entitled to the same rights as women. Even though male rape is a less frequent occurrence than female rape, they cannot be denied the right to equality”.
Besides, Kkumaar has placed reliance on the Right to Privacy judgment delivered by Supreme Court last month.
“That, Hon’ble Supreme Court in Right to Privacy ruling has used the word “consent” 38 times. Consent and bodily integrity of each citizen are now fundamental rights and the cornerstone of the Privacy Ruling.
Privacy now being a Fundamental Right has changed the contour and validity of some existing Acts and Cr.P.C/IPC and made them(or some sections of them) Null, Void and Unconstitutional.”
Based on the above, the petitioner has prayed that the Court issue directions to,
“…declare Gender Specific Sections of IPC 375 & IPC 376 null, void and unconstitutional as per Article 13(2) of Indian Constitution as in current form IPC 375 & 376 are ultra-vires Articles 21 and 14 of Constitution of India”
He has also prayed for a direction to be issued to the Centre to replace the current rape provisions with gender neutral provisions relating to rape, which were in force for a period of 58 days from February 3, 2013 to April 1, 2013, but were then replaced with gender specific provisions.
The case will now be heard on October 23.
Read the petition below.