Gender Neutrality: Rights of one, abrogation of another?

gender neutral laws in india
By: Taniya Tuli, 4th Year BLS LLB, Rizvi Law College (Mumbai)

Gender Neutrality- Rights of one, abrogation of another?

The legal framework of a country is based on its societal skeleton. The concept of gender neutrality in the legal aspect refers to the idea of equality in the recognition of the rights of all individuals irrespective of their sexes.

The Oxford Dictionary defines ‘Gender Neutrality’ as an adjective that is suitable for, or applicable to, every individual irrespective of gender. It describes the idea that policies, language, and other social institutions should avoid distinguishing roles according to people’s sex or gender, and emphasises on equal treatment of individuals legally with no discrimination.

This article intends to draw a comprehensive study on the prevalent socio-legal conditions of India and analyse the paramountcy of gender neutrality by underlining the shift in the societal trends, for the purpose of which this article has been divided into two sections, the first of which shall shed light on the social conditions of the post-independent period in contrast with the various laws formulated in response to them and the second shall deal with deviation in the societal trends and an era of the beginning of the end to prejudice and the impact of judicial reforms on the society.

A contrast between the evolution of the legal framework and the social conditions

Introduction

India has been a land that has driven past ideologies where women were made to submit to the male-dominated patriarchal society and were mainly meant to build strong homes to support their men who were in the fields to build the newly independent country.

Wide inequalities prevailed in their access to educational, physical and financial resources and opportunities in social, political and cultural arenas. When India got its independence and the Constitution was formulated the participation of women nationalists in the freedom movement was appreciated and an entire part granting equal rights to men and women both in terms of freedom and opportunity was enshrined in the Constitution.

Various provisions were enacted for the upliftment of women to bring them at par with the opposite sex and also weaken the roots of the patriarchal society.

(1)The Constitutional Privileges adopted for the upliftment of women and to ensure equality in status among individuals are as follows-

(1.1)  Equality before law (Article 14)- Article 14 states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The source of Article 14 lies in the American and the Irish Constitutions.

It may be mentioned that the Preamble to the Indian Constitution speaks of equality and of opportunity and this article gives effect to the principle in the text of the Constitution. In a sense, the demand for equality is linked up with the history of the freedom movement in India.

The Commonwealth of India Bill, 1925, in clause 8 demanded, inter alia equality before the law and provided especially that there be “no disqualification or disability on the ground of only sex”, along with the provision that all persons were to have equal right to the use of “roads, courts of justice, and all other places of business or resort dedicated to the public”.

In order, to fulfil the purpose of this Article, the Courts soon evolved the doctrine of classification to give practical contend to the doctrine of equality, thereby facilitating policies and legislations adopted in favour of women widely emphasising on the idea of equity with equality.

In Air India v. Nargesh Meerza[i], where the Air India Regulation provided for the retirement of an air hostess in case of pregnancy within four years of service, the Supreme Court laid down that the conditions were manifestly unreasonable and arbitrary and clearly violative of Article 14 of the Constitution and further held that the termination of services of Air Hostesses in such circumstances was not only a callous and cruel act but an open insult to Indian womanhood, the most sacrosanct and cherished institution.

(1.2) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them (Article 15(1)); Nothing in Article 15 shall prohibit the State from making any special provision for women and children (Article 15(4))- Article 15 provides for a particular application of the general principle embodied in Article 14. In Kathi Ranning v. State of Saurashtra[ii], the Supreme Court held that when a law comes within the prohibition of Article 15 it cannot be validated by recourse to Article 14 by applying the principle of reasonable classification. It is when the discrimination is based upon one of the grounds mentioned in Article 15, the reasonableness of the classification will be tested under Article 14.

Article 15(3) further empowers the State to make special provisions for women and children. The reason is that “women’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence and her physical well-being becomes an object of public interest and care in order to preserve the strength and vigour of the race”[iii].

In Dattatraya v. State[iv], it was held that educational institutions established by the State exclusively for women, or the reservation of seats for women in a college- does not offend Article 15(1).

(1.3) Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State (Article 16)- The main objective of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices.

In Rajesh Gupta v. State of U.P[v], the Court held that reservation of 50% of posts in favour of female candidates is not arbitrary.

Furthermore, the Constitution also bestows the State with a responsibility to formulate laws for the betterment of women in the form of the Directive Principles of State Policy, some of which are as follows-

(1.4)  The State shall direct its policy towards securing equal right of men and women to adequate means of livelihood (Article 39(a)) and equal pay for equal work for both men and women (Article 39(d))- The Directive Principles of State Policy though unenforceable in a Court of law, direct the State to make laws in furtherance of this regard.

This article has been described as pertaining to the object of securing a welfare state and may be utilised for construing provisions as to Fundamental Rights.

However, the doctrine of ‘equal pay for equal work’ cannot be put in a straitjacket formula. This right, although finds a place in Article 39, it is supplementary to the equality clause provided in Articles 14 and 16 of the Constitution and thus reasonable classification based on intelligible differentia having nexus with the object sought to be achieved is permissible.

(1.5) The State shall make provisions for securing just and humane conditions of work and for maternity relief- With regard to this provision, the Constitution drafters have taken a step to ensure that women are accorded with the basic amenities and not discouraged by the social norms of the society.

The State has acted in conformity with this provision and enacted ‘The Maternity Benefit Act, 1961’.

Another provision for the security of women was added in Part 1V-A consisting of Article 51-A by the 42nd Amendment Act, 1976-

(1.6) It shall be the duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women (Article 51-A (e)).

  1. In pursuance of the Constitutional mandate, the State has adopted various legislative measures with the object of fighting social discrimination and various forms of violence to advocate the rights of women in India. These legislative measures can be broadly classified into two heads- (i) Women specific legislations and (ii) Crimes under the Indian Penal Code, 1860.

(2.i) Women specific legislations- The provision of law affecting women have been considerably reviewed from time to time and amendments have been made to keep pace with the evolving society. Some of the laws containing special provisions to protect women from various social evils are as follows-

  • Indecent Representation of Women (Prohibition) Act, 1986
  • The Immoral Traffic (Prevention) Act 1986
  • Dowry Prohibition Act, 1961
  • Commission of Sati (Prevention) Act, 1987
  • The Protection of Women from Domestic Violence Act, 2005
  • Information Technology Act, 2000
  • The Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act, 2013
  • The Prevention and Protection from Witch Hunting
  • Pre-Conception & Pre-Natal Diagnostic Techniques Act, 1994
  • The Medical Termination of Pregnancy Act, 1971
  • The Prohibition of Child Marriage Act, 2006

(2.ii) Crimes under the Indian Penal Code, 1860- In the chauvinistic Indian society, the sufferings of women have been tremendous. Their vulnerability has flown right from the inception, being parental sex election to the abuse of widows and old women.

The Indian Penal Code, 1860, describes various offences which are women specific. However, the Sections dealing with sexual offences against women assume major relevancy for the purpose of this study and hence are discussed in length below-

(2.ii.a) Rape (Section 375 and Section 376)- In State of Punjab v. Ramdev Singh[vi], the Supreme Court observed-

‘Rape is not only an offence against the person of a woman rather a crime against the entire society. It is a crime against basic human rights and violates the most cherished fundamental right guaranteed under Article 21 of the Constitution’.

With a plethora of cases being reported, the rape laws in India have always been prone to alterations to make them more severe and stringent. We shall now analyse the rape laws as they stood prior to the law reforms and then deal with an in depth study of the law reforms and their evolution.

  • Prior to substitution by Section 9 of the Criminal Law (Amendment) Act 2013, Section 375 and Section 376 stood as

Section 375- 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-

First.- Against her will.

Secondly.- Without her consent.

Thirdly.- With her consent, when her consent has been obtained by putting her or any other person in whom she is interested in fear of death or hurt.

Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.- With or without her consent, when she is under sixteen years of age.

Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape

Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Section 376- (1) Whoever, except in the cases provided for by sub-section(2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,-

(a) being a police officer commits rape-

(i) within the limits of the police station to which he is appointed

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed: or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being in the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place of institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(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 judgement, impose a sentence of imprisonment of either description for a term of less than ten years.

Explanation 1.- Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the person shall be deemed to have committed gang rape within the meaning of this sub-section.

Explanation 2.- “Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or by any other name, which is established and maintained for the reception and care of women or children.

Explanation 3.- “Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.

It can be seen from the above stated Section that prior to substitution, Section 375 extended only to the act of sexual intercourse. However, on account of some heinous cases, rape laws have undergone major changes. Thus, it becomes pertinent to highlight the various law reforms that have led to the extension and reconstruction of these rape laws.

  • Law Reforms-

1) Criminal Law Amendment Act 1983 (Mathura Act)- The act came to be introduced as the brain child of the infamous Mathura Case[vii]. In the present case, Mathura was a young orphan tribal girl who lived with one of her two brothers. She was a dalit. The incident is suspected to have occurred on 26 March, 1972, while she was sixteen to eighteen years of age.

Mathura occasionally worked as domestic help with a woman named Nushi. She met Nushi’s nephew named Ashok who wanted to marry her, but her brother did not agree to the union and went to the local Police Station to lodge a complaint that his sister, a minor, was kidnapped by Ashok and his family members.

After receiving the complaint, the police authority brought Ashok and his family members to the Police Station. Post the general investigation, Mathura was asked to stay behind while her relatives were asked to wait outside. Mathura was then raped by two policemen.

When her relatives and the assembled crowd threatened to set the Police Station, on fire, the two accused policemen namely Ganpat and Tukaram reluctantly agreed to file a panchnama.

The case was listed for hearing on 1st June, 1974, before the Sessions Court. The Court of Session found them not guilty and laid down that as Mathura was ‘habituated to sexual intercourse’, her consent was voluntary and under the circumstances, only sexual intercourse could be proved and not rape and hence they were acquitted.

On appeal, the learned Bombay High Court Judge set aside the order and convicted the accused. However, in September, 1979, the Supreme Court of India acquitted the accused and held that Mathura had raised no alarm, and also there were no visible marks of injury on her person thereby suggesting no struggle and therefore an offence of rape was not made out.

It was observed that ‘because she was used to sex, she might have incited the cops (they were drunk on duty) to have intercourse with her.’

The judgement went largely unnoticed until law professors of Delhi University and Vasudha Dhagamwar of Pune wrote an open letter to the Supreme Court, protesting the concept of consent and stating that “consent involves submission, but the converse is not necessarily true”, and “is the taboo against pre-marital sex so strong as to provide a license to Indian police to rape young girls”.

Spontaneous widespread protests followed. However, the Courts ruled that there was no locus standi in the case. This eventually led the Government to amend the existing rape laws.

The following amendments were made to Section 375 and Section 376 of the Indian Penal Code-

(1.a) The Act led to the introduction of new sections, namely Sections 376A, 376B, 376C, 376D in the Indian Penal Code. Of these, Section 376A punished sexual intercourse with wife without her consent by a judicially separated husband, Section 376B punished sexual intercourse by a public servant with a woman in his custody, Section 376C punished sexual intercourse by Superintendent of Jail, Remand home, etc, with inmates in such institutions and Section 376D punished sexual intercourse by any member of the management or staff of a hospital with any woman in the hospital.

(1.b) New provisions for trial in camera (Section 327 (2) CrPC) and against disclosure as to the identity of the victim of sexual offences under Section 228A of the Indian Penal Code were made. These provisions were adopted with a view to protect both the identity of the victim and allow her to depose in the Court without any fear of social ostracism.

(1.c) Section 114A of the Indian Evidence Act which raises a presumption as to the absence of consent in cases of custodial rape, rape on pregnant women and gang rape, was introduced.

These new Sections were introduced with a view to stop the sexual abuse of women in custody and control by various category of persons. The Courts observed that the cases of sexual offences against women should be dealt sternly and severely. In Aman Kumar v. State of Haryana[viii], the Court went a step further and held that the victim’s testimony can be acted upon without corroboration in material particulars’.

2) Criminal Law Amendment Act 2013 (Nirbhaya Act) – The scope of rape laws though was broadened by the Act of 1983, there was yet another lacuna to be resolved.

On 16th December, 2012, a young girl was returning home with a male friend after watching a movie. They boarded a bus that had six people in it including the driver. The six people on board knocked the boy unconscious with an iron rod and then raped the girl. They inserted an iron rod in her vagina, severely damaging her intestines, abdomen and genital. Finally, they were both thrown out of the bus[ix].

The woman was rushed to the hospital and the accused were arrested within 24 hours. While on trial, one of the accused namely Ram Singh committed suicide while his father levelled allegations of him being raped by the jail inmates[x]. The four adults were given a death penalty, while the minor was sent to reform facility for three years.

The nationwide protest against the incident forced the Government to constitute Justice J.S Verma Committee to recommend changes in the existing rape laws. It is based on these recommendations that major amendments were made to the Indian Penal Code, the Code of Criminal Procedure, the Indian Evidence Act and the Protection of Children from Sexual Offences Act, which are discussed below-

(2.a) By the ordinance, Sections 375, 376, 376A, 376B, 376C and 376D of the Code have been substituted by new Sections.

(2.b) Section 375 has also clarified that a lack of physical resistance is immaterial for constituting an offence.

(2.c) The scope of Section 375 has been broadened to include penetration of the male organ or any part of the body or any object or manipulation so as to cause penetration or oral stimulation and is not just limited to penile or vaginal intercourse.

(2.d) The scope of Section 376 has also been broadened to include members of the armed forces, relatives, guardian, or teacher or any person in a position of trust, or rape during communal violence and rape of a woman below sixteen years of age.

The rape laws post the Criminal Law Amendment Act of 2013 have been reproduced below-

  1. 375. 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, the urethra or anus of a 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 any other person;

Under the circumstances falling under any of the following seven descriptions:-

First.- Against her will.

Secondly.- Without her consent.

Thirdly.- With her consent, when her consent has been obtained.

Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes her to be lawfully married.

Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.- With or without her consent, when she is under eighteen years of age.

Seventhly.- When she is unable to communicate consent.

Explanation 1.- For the purpose of this section, “vagina” shall also include labia majora.

Explanation 2.- Consent means any unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.- A medical procedure or intervention shall not constitute rape.

Exception 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

S.376. (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever,-

(a) being, a police officer, commits rape-

(i) within the limits of the police station to which such officer is appointed; or

(ii) in the premises of the station house; or

(iii) on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or

(b) being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or

(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or

(d) being in the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

(g) commits rape during communal or sectarian violence; or

(h) commits rape on a woman knowing her to be pregnant; or

(i) commits rape on a woman when she is under sixteen years of age; or

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape on such woman; or

(l) commits rape on a woman suffering from mental or physical disability: or

(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or

(n) commits rape repeatedly on the same woman,

Shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of the person’s natural life, and shall also be liable to fine.

Explanation.- For the purpose of this sub-section,-

(a) “armed forces” means that naval, military and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government;

(b) “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;

(c) “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act,1861 (5 of 1861);

(d) “women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children.

It is thus evident from the above mentioned Sections, that the rape laws mentioned under the broad heading of sexual offences under the Indian Penal Code, 1860, have time and again undergone alterations and modifications to be capable of the widest form of interpretation to best suit the demands of the changing social conditions.

However, the rigidity of these gender specific laws under the generalised title of ‘sexual offences’ and their complete inapplicability to one entire realm after major changes in the socio-legal framework is disputable.

The next section of the paper shall draw a comparison between the changes in the societal conditions and the static legal path, to conclude the imbalance between them while emphasising on the indispensable need to strike an equilibrium between the two.

An era of the beginning of the end to prejudice and misinterpreted feminism

Introduction

With a complete microscopic view of the various laws in practice for the advancement of women, it can be affirmed that the country has to a great extent succeeded in achieving the purpose and objective of these laws.

It is commendable to observe that as per the census of 2011, India’s population was 1.37 billion with females constituting 48.50% of it and that the sex ratio in the age group of 0-6 years has increased in the rural areas from 906 in 2001 to 923 in 2011. In the sphere of literacy also, as per the NSS 71st round report, overall 62% females in rural India and 74.80% females in urban India are literate.

This data is reflective of India’s advancement towards the goal of upliftment of the status of women.

Besides the legal framework, a shift in society’s trend towards the ideology of feminism has also played a major role. ‘Feminism’ as defined in the Merriam-Webster is the “theory of the political, economic and social equality of the sexes.”

However, the bitter reality is rooted in the fact that despite of the society’s shift towards feminism, the country has failed to adopt a pragmatic approach towards feminism while widely misinterpreting it as a step aimed at the betterment of only one sex, when the society as a whole has undergone an outright modification with the decriminalisation of Section 377 of the Indian Penal Code, 1860.

Decriminalisation of Section 377 of the Indian Penal Code, 1860

Section 377 modelled on the Buggery Act of 1533, was incorporated in the Indian Penal Code in the year 1861. By virtue of Section 377, sex between consenting adults of the same gender was penalised. Section 377 as provided in the Indian Penal Code is reproduced below-

Section 377. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

However, a landmark judgement in the legal history engraved itself on the 6th of September 2018, in the case of Navtej Singh Johar v. Union of India[xi], where a five judge constitutional bench of the Supreme Court consisting of Chief Justice Dipak Mishra and Justices Dhananjaya Y. Chandrachud, Ajay Manikrao Khanwilkar, Indu Malhotra and Rohinton Fali Nariman, ruled in favour of decriminalisation of Section 377 observing that consensual sexual acts between adults cannot be a crime, and overturned its own judgment pronounced in 2013 in the Naz Foundation case and held the prior law to be “irrational, arbitrary and incomprehensible.”

The decriminalisation of Section 377, whilst awakening the nation to freedom, failed to acknowledge the fact that the demand for flexibility in the current legal scenario was manifest.

Laws are formulated with an imperative objective of protecting the rights bestowed to individuals; nonetheless, in this case, the right was created as a result of the scrapping of one legal provision with no simultaneous provision being created to protect the same and with the existing legal provisions still being guided towards being women specific.

Analysing the Constitutional provisions adopted for the upliftment of women, it can be inferred that these laws were adopted by the Constitution drafters to catalyse equality and hence women specific legislations or actions build on them were considered under the head of intelligible differentia created to strive for the object of attaining equality.

However, the fact that the change in the prevailing circumstances have brought into picture a shift from the patriarchal society, the Fundamental Rights of two categories namely men and transgenders have to be re-analysed. In ‘National Legal Services Authority v. Union of India[xii], the Supreme Court expressly held that transgender people should be recognised as a third gender and enjoy all Fundamental Rights, while also being entitled to specific benefits in education and employment.

Further, scrutinizing the criminal laws with reference to sexual offences contained in the Penal Code of 1860, under Sections 375 and 376, it is conclusive from the discussion in the first part that though the amended rape law can now be conceived in its widest ambit to include all forms of sexual assault both: penetrative and non- penetrative, yet it can be invoked only when the perpetrator is a male and the victim is a female and the proposition relating to the rape of men or transgender still finds its place as an offence under Section 377.

In Jameel v. State of Maharashtra[xiii], it was observed that unlike rape the actual sentence under this section is not usually heavy.

Examining, the status of women as perpetrators against women: another aspect of the rape laws needs to be unveiled. Section 376D which deals with the offence of gang rape states that-

  1. 376-D. Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.

This Section consists of the following ingredients-

  • It requires more than one person to act in concert with the common intention to rape the victim.
  • It requires more than one accused to have acted in concert in the commission of the crime of rape with a pre-arranged plan, prior meeting of the mind and with an element of participation in action. The common intention would be action in concert in a pre-arranged plan or a plan formed suddenly at the time of the commission of an offence which is reflected by participation in action or by the proof of the fact of inaction when the action was necessary
  • It requires the act to be committed in furtherance of common intention by one or more persons of the group and the prosecution is not required to prove the actual commission of rape by each and every person of the group.

A bare perusal of the above mentioned ingredients clearly indicate that for the offence of gang rape to be committed, rape need not be actually committed by each and every member of the group and that prior meeting of the minds is sufficient for the offence to be committed, which when widely construed inclines towards the law being gender neutral with respect to the perpetrator.

However, when the question came for consideration before the Supreme Court in the case of Priya Patel v. State of Madhya Pradesh[xiv], where a woman was accused of gang rape, the Court observed that “a woman cannot be said to have an intention to commit rape”.

The relevancy of this judgement, in consonance with the present scenario where consensual sex between two adults have been recognised as a fundamental right under the Right to Privacy as a facet to Article 21, should be subjected to re-examination.

Shifting our area of study to the unrecognised and disputed rights of the transgender community in India, it becomes pertinent to discuss the Transgender Persons (Protection of Rights) Bill, 2019 which was introduced in the Parliament on July 19, 2019, by the Minister for Social Justice and Empowerment, Mr Thaawarchand Gehlot.

This bill which was meant to underline the rights of the transgender people in the nation was rather opposed vehemently with the activists addressing the day as ‘Gender Justice Murder Day’ for the community. The Bill besides violating the 2014 judgement of the Supreme Court in the case of ‘Nalsa v. Union of India’, also failed to confirm to the international standards for gender recognition.

The bill was perceived as self-contrary where it aimed at providing a right to self-perceived gender identity on one hand and on the other aspect required the transgender persons to go through a district screening committee to get certified as a trans person and procure a revised certificate after undergoing surgery to confirm their gender.

Furthermore, in case the individual was denied the certificate, the Bill mentioned of no provision for appeal or review of the decision taken by the District Magistrate. The bill further perceives crime against transgender persons as less violent and prescribes penalty of imprisonment from six months to two years only, holding that crimes of sexual assault, harassment and abuse are not of very serious nature.

Besides, the National Coalition of Anti-Violence Projects (NCAVP) estimates that around half of transgender people experience assault and rape at some point in their lifetime. It is therefore evident that apart from the criminal laws regarding sexual offences failing to accord protection to the male community and the third gender, the constitutional mandate continuing to create an intelligible differentia in favour of women has swallowed the entire purpose of the Fundamental Rights and is hence evasive.

Conclusion

With the progressive evolution in the socio-legal framework, the need to recognise the rights of the male and the transgender fraction in pursuance of decriminalisation of Section 377 or the acknowledgement of the LGBT rights has become inevitable.

Another aspect of the current sexual offences laws being exposed to constant abuse is also irrefutable. An investigation by the Delhi Commission of Women (DCW) revealed shocking statistics showing that 53.2% of the rape cases filed between April 2013 and July 2014 in Delhi were found to be ‘false’[xv].

A report by ‘the Hindu’ journalist, Rukmini Shrinivasa also revealed that 41% of the cases in the Delhi District Court filed in the year 2013 were by parents to criminalize and end consented sexual relationships. Further, Justice Kailash Ghambhir of the Delhi High Court stated that the penal provisions for rape are often being subjected to misuse by women as a “weapon for vengeance and vendetta”.

Nonetheless, Judicial Activism has come into the frame to fight the menace of these protective laws with the recent 2019 judgement in the case of Pramod Suryabhan Pawar v. State of Maharashtra[xvi], wherein the following observations of the Supreme Court in the case of  Deepak Gulati v. State of Haryana[xvii], were cited- “There is a distinction between the mere breach of a promise, and not fulfilling a false promise.

Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence.

There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently.

Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances.

The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact”, the fact must have an immediate relevance”.

Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.”

The Supreme Court by emphasising on the above observations has taken a step to eradicate the abuse of the gender specific rape laws and has also drawn a line of demarcation between consensual and coercive sexual activities.

It can thus be affirmed that the nation has arrived at a point where gender neutral laws have become a necessity to completely eradicate the abuse of the present laws and to protect the sanctity of Fundamental Rights. Late in 2018, a petition was filed by a Non-Governmental Organization- Criminal Justice Society of India asserting that Section 375 be held ultra vires for being discriminatory and violative of Articles 14, 15 and 21 of the Constitution.

The petitioner laid stress on the lack of consideration of male and transgender victims of rape under the legal framework and the impending need of the same, while relying majorly on the September decision of the Apex Court decriminalising sexual relations between consenting homosexual adults and contended that the Court still weighed non consensual carnal intercourse against the order of nature between any two or more adults as an unnatural offence.

History has time and again posed the necessity of gender neutral laws before us. The Law Commission of India in its 172nd report in 2000, as a response to the landmark case of ‘Sakshi v. Union of India[xviii], proposed to substitute the definition of rape with that of ‘sexual assault’ to imbibe all genders in its scope.

Again, Justice Verma Committee of 2012 had favoured gender-neutral laws completely in its report and the Criminal Law (Amendment) Ordinance 2013 was published in The Gazette of India which upheld the Committee’s view. In the spirit of gender-neutral laws, sexual harassment, voyeurism and stalking were added to the Indian Penal Code and certain amendments and deletions were made to IPC, CrPC and Evidence Act.

But the ordinance on making all laws gender neutral lasted for 58 days and was repealed and replaced by The Criminal law (Amendment) Act 2013 which again brought to light gender specific laws.

It is saddening that the concept of gender neutrality is considered as a “backlash against feminism”, whereas it is a step towards attaining equalisation and wiping out the persistent battle between sexes that serve as a hindrance to development with the rights of one class abrogating the rights of another.

 

[i] AIR 1981 SC 1829

[ii] AIR 1952 SC 123

[iii] (Muller v. Oregon, 52 L.Ed.551)

[iv] AIR 1953 Bom 311

[v] AIR 2005 SC 2540:2005 LabIC 2087:2005

[vi] AIR 2004 SC 1290:2004(1)SCC 421

[vii] Tukaram v. State of Maharashtra,1978 CrLJ 1864: AIR 1979 SC 185

[viii] (2004(4)SCC 379):AIR 2004 SC 1497:2004 CrLJ 1399

[ix] Mukesh and another v. State(NCT OF DELHI) (2017) 3 SCC 719

[x] (Kumar G:P(2013) Ram Singh’s death: rape and ugly sexual violence in Indian jails. The first post)

[xi] WP(Crl.) No. 76/2016

[xii] writ petition no 400 0f 2012

[xiii] (2007) 11 SCC 420: AIR 2007 SC 971 : 2007 CrLJ 1425

[xiv] 2006 CrLJ 3267:AIR 2006 SC 2639

[xv] https://www.indiatoday.in/india/north/story/false-rape-cases-in-delhi-delhi-commission-of-women-233222-2014-12-29

[xvi] (2019 SCC Online SC 1073)

[xvii] (2013)7 SCC 675

[xviii] AIR 2004 SC 3566

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