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A petition has been filed in Supreme Court challenging the Constitutional validity of Section 375 of the Indian Penal Code (IPC) on the ground that the provision is not gender-neutral.
The petition has been filed by NGO Criminal Justice Society of India through advocate Fuzail Ahmad Ayubbi.
The petitioner has contended that Section 375 violates Articles 14, 15 and 21 of the Constitution as it does not account for rape of men and Transgender persons.
It is the petitioner’s contention that the definition of rape under Section 375 is not gender-neutral and lack of acknowledgment of male and transgender rape has impacted the ability of victims to recognize their own victimization.
The petition begins by adverting to various recommendations made by the Law Commission to make rape laws gender neutral.
As per the petitioner, before the Criminal Law (Amendment) Act, 2013, the Union Cabinet had in July 2012 proposed to make rape a gender-neutral offence. Thereafter, the Criminal Law(Amendment) Bill, 2012 was introduced in Lok Sabha/ The said bill proposed to replace the term ‘rape’ with that of ‘sexual assault’. Moreover, the said bill defined both the victim and perpetrator as ‘any person’, thereby making both parties gender neutral.
However, on December 16, 2012 the unfortunate rape of Nirbhaya occurred. It shook the nation and led to the formation of Justice Verma Committee.
The Justice Verma committee suggested that the scope of the definition of rape under Section 375 be widened with respect to the victim and it be made gender-neutral. However, the definition of a perpetrator was limited to a man.
Pursuant to the Justice Verma Committee Report, the Criminal Law (Amendment) Ordinance, 2013 was published. Several sections including but not limited to Sections 375 and 376 were amended or added, making it broader and gender neutral by amendments, insertions, deletions in IPC, CrPC and Indian Evidence Act.
However, the Ordinance of 2013 was repealed and replaced retrospectively by the Criminal Law (Amendment) Act, 2013. The definition of rape under Section 375 was substituted by the Amendment (Act), 2013 overriding the gender-neutral definition as provided in the Ordinance of 2013.
Section 375 of IPC as it stands today reads as follows:
A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b)inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c)manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any ~ of body of such woman or makes her to do so with him or any other person; or
(d)applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—
Thus, the recommendation of Justice Verma Committee, which were included in the Ordinance of 2013 with regard to gender neutralization of victims was not retained in the Amendment Act of 2013.
Gender neutrality, rape is not just penile-vaginal
The petitioner has submitted that gender neutrality within rape statutes is a concept that the criminal law should recognize and that both men and women can be rape victims as well as perpetrators.
Gender neutrality within rape reflects modern understanding of the nature, effects, and dynamics of non-consensual penetrative sex acts, and is an evidence-led means of appropriately labelling criminal conduct.
The petitioner contends that scholars have criticized traditional rape laws that only prescribe penile-vaginal intercourse, arguing that these laws exclude ‘a great deal of behavior which is remarkably similar to the act legally designated as rape and.. such exclusion appears to rest on no logical or justifiable grounds’.
In understanding what constitutes rape, international law has evolved from viewing it just as penile-vaginal to penile-orifice and then to penetrative-orifice, all within a non-consensual context. Even in the case of Nirbhaya, the physical violation with blunt objects was classified as rape, the petition states.
Silence on Rape of men and Transgender persons
The petition states that societal pressure and stigma prevents men and Transgender persons from speaking out about sexual assault they have had to face.
The concept of masculinity and male vanity prevent male victims from coming forth and reporting such crimes.
“Importantly, in the absence of legal recourse or remedy under law, there is no provision for any person except a woman to report rape or sexual assault.”
As for Transgender persons, their voices are curbed because of non-acceptance and societal pressure.
Due to the same, there is a dearth in statistics of sexual assault of men and transgender persons.
NALSA and Navtej Singh Johar
The petition adverts to the judgments of the Supreme Court in NALSA v. Union of India wherein Transgender persons were recognised as third gender.
However, no recognition has been afforded to the sexual assault that Transgender persons are subjected to. Till date, the Transgender Rights Bill, 2016 has not taken the form of an Act. Hence, the Transgender community is remediless insofar as sexual assault is concerned, the petition states.
Likewise, the decision in Navtej Singh Johar decriminalized consensual carnal intercourse against the order of nature holding Section 377 as violative of Articles 14, 15 and 21 of the Constitution of India, so long as the act is consensual.
However, the judgment did not equate non-consensual carnal intercourse against the order of nature (between any 2 or more adults) as sexual assault. Instead, it continued to deem it as an unnatural offence only.
It is the petitioner’s argument that Section 377 of the Code, even after being read down and made applicable to instances of non-consensual carnal intercourse against the order of nature by any person, does not account for the concept of bodily integrity, victimology, psychological trauma, coupled with societal stigmatization. On the other hand, Section 375 of the Code encompasses the aforementioned aspects qua female victims wherein only a man is the perpetrator.
“Furthermore, the act of defined under Section 377 is termed as an ‘unnatural offence’ and not even afforded the status of ‘sexual assault’, let alone ‘rape’, making it completely devoid of dignity, bodily integrity, personal liberty and privacy, all enshrined under Article 21 of the Constitution of India.”
Thus, the petitioner has submitted that Section 375 applies only to women as victims and men as perpetrators. It does not take into account non-consensual sexual assault inflicted on a woman by a woman, on a man by another man, on transgender by another transgender or a man or woman, on a man by a woman. The sexual orientation and gender identity of the aforementioned persons involved may either be heterosexual, transgender including but not limited to homosexual, bi-sexual.
The petitioner has therefore prayed that Section 375 of the Indian Penal Code be declared as ultra vires for being discriminatory and violative of Articles 14, 15 and 21 of the Constitution of India.
Read the petition below.