Authors - Shambhavi Singh and Sanjana Bishnoi
Rape has been associated with the dominance of men over women throughout the world for ages, offering light to the patriarchal form of society. Black’s Law Dictionary[1] defines rape as “the unlawful carnal knowledge of a woman by a man forcibly and against her will. That is, without her consent and against her utmost resistance” making it a gender specific offense. If we take a look into Indian Penal Code which was drafted in 1860, under the chairmanship of Lord Thomas Babington Macaulay, 87 years before India got independence, we’ll find rape defined in the s 375 and the punishment prescribed in s 376. The IPC starts defining rape with “a ‘man’ is said to commit rape…” which confines victim to women and preparator to men making the law defective and restricting the idea of justice. Due to the restricted view of s375 of IPC adult male survivors of penetrative sexual assault stay devoid of justice and the fact that they can be victims too remain unacknowledged. The patriarchal formulation of our laws leaves no other means for an adult male survivor of penetrative sexual assault than to take plan of action under Section 377 of the Indian Penal Code, which is nothing but remains of a draconian past that tries to rebuff ‘carnal intercourse against the order of nature’, prohibiting the LGBTQ+ community from choosing their partners as it does not comprehend between consenting adults and non-consenting participants. This makes a lamentable lawful fiction that presumes that ‘men can be sodomized but they cannot be raped’. However, section 377 too is no more a course to be taken since it was announced unconstitutional in Navtej Singh Johar v Union of India. This is an outlandish twofold standard that fortifies dubious gendered stereotypes about male and female sexuality.
Jaspal Singh, Judge of the Delhi High Court addressed the issue of achieving gender neutrality in rape law in Sudesh Jhaku v KC Jhaku[2] where it was held that the relief could not be conceded by a judicial authority, as it could be only acquired through legislative amendment. This issue was again raised in 1997, by a Delhi-based group, Sakshi, that filed a writ petition under the steady gaze of the Supreme Court of India with a request to reevaluate the question that had emerged in Jhaku. It was after two years, in 1999, that the “precise issues” were outlined by the apex court which were to be considered by the Law Commission of India.[3] Consequently, a recommendation of substitution of the offense of rape with an absolutely unbiased offence of “sexual assault” was introduced by 172nd Report of the Law Commission of India.[4] One of the fundamental reasons for the Commission to make this suggestion was a sizeable increment in the quantity of occurrences of sexual assault against minor boys that could not have been considered as offenses of rape under the unamended definition.[5] This concern, be that as it may, no longer holds a lot of pertinence after the Protection of Children from Sexual Offences Act, 2012 (POCSO), which fulfils the aim to protect children from cases of sexual assault, harassment, and pornography when executed by a man. The proposals of the Law Commission never converted into a legislative amendment up until 2012, when the Criminal Law (Amendment) Bill, 2012 proposed an entirely gender unbiased definition of rape.[6] Many found this proposition to be astonishing post POCSO since the incentives behind the amendment remained uncertain. In the midst of the predominant uncertainty, this little known proposition drew immense objection and criticism from women's activist researchers. For example, in her initial articulation to the Justice Verma Committee (JVC), Ms Indira Jaising, a conspicuous Senior Advocate in India, marked this move as inadmissible since assault was to be constantly portrayed as an offense constitutive of male centric society, and consequently, gendered.
Before the bill could be passed and come into act, the country was shaken by the Nirbhaya case, the brutality of which made the population come on roads in order to seek justice for the victim. As a result of the shock that followed, the legislature comprised the JVC to investigate altering the criminal law so as to accommodate speedier preliminaries and improved discipline for perpetrating rapes of an outrageous nature against women.[7] Unlike the 2012 Bill, the JVC Report suggested that the offence of “rape” be held, and not be alternated by the offence of “sexual assault”, as it was generally perceived as a statement of society’s strong moral condemnation. In a fairly confusing inversion, the Criminal Law (Amendment) Ordinance, 2013 was promulgated by the legislature to adopt a completely gender-neutral definition of rape.[8] This choice was reprimanded as being rushed, violative of the letter and soul of the JVC Report,[9] and bearing the possibility to make a chilling impact on a woman’s ability to file a rape complaint.[10] Despite the several attempts of amendments made, the results have not been satisfactory.
As in numerous different nations, rape is grossly underreported in India due to victim shaming, fear of retaliation, fear of humiliation, cases not being paid attention to by law enforcement, and conceivable absence of indictment for the culprit. Men who are generally brought up with patriarchal notion in India find it more difficult to express such incident in order to safeguard their fragile masculinity from being questioned. In a conservative society like India, it is hard to accept the fact that men are raped too and even when it is taken into consideration, the preparator is always expected to be man. There are a ton of myths around male rape and molestation of which the myth that women cannot practically rape men ranks at top. It is not only penetration of penis which amount to rape but embeddings anything and applying mouth likewise also constitute rape. These acts can be possibly done by woman with any man or women without their free assent which must be condemned however it isn't perceived as rape because of this draconian law. While official insights in such manner are rare, prominent feminist scholars like Laxmi Murthy recognize and said that men too can be sexually assaulted – by men, as well as by women and that women too are capable of perpetrating sexual assault on men.[11] However, it is also very wrong that a woman cannot press charges against another woman for any sort of sexual assault. This injustice raises other important issues with respect to sexual standards, for example, regardless of whether sex between ladies who don't have penises is viewed as 'genuine' sex according to the law and society, given that it doesn't include a penis. Absence of proper provisions for such offences violates the fundamental rights of distinct classes of victims. Omission of the gender other than women from the ambit of section375 is violative of Article13 of the Indian Constitution which ensures right to equality to its citizens. Such exclusion also exposes the omitted group to discrimination against which the Indian Constitution provides protection under Article15 which is yet another fundamental right.
Therefore, we suggest that, if rape laws were made gender neutral, these stereotypes would be sabotaged and this may make a few (though little) contrast to the risky ways that sexual relations are at times seen between men and women more generally. As a blemished choice to complete gender neutrality, in any case, the state may in any event consider authorizing a different unbiased offense of sexual assault of like earnestness, with indistinguishable disciplines as those endorsed for committing the offence of rape. The proposal is commenced on the view that each diverse class of sexual assault victims, from women and children to sexual minorities, must be tended to independently. This way, while the offence of rape will stay restricted to the conventional male-on-female worldview, the class of casualties directly overlooked from the criminal equity framework will have some lawful change.
[The authors are 2nd-year law students at School of Law, Bennet University.]
[1] Garner, B. A., & Black, H. C. (1999). Black's law dictionary. 7th ed. St. Paul, Minn.: West Group [2] 1998 CriLJ 2428, 62 (1996) DLT 563, 1996 (38) DRJ 22 [3] Sakshi v Union of India (1999) 6 SCC 591 [Sakshi]. [4] Law Commission of India, 172nd Report: Review of Rape Laws (New Delhi: Ministry of Law and Justice, Government of India, 2000) [5] Ibid at para 3.1. [6] Criminal Law (Amendment) Bill, 2012 (India), s 5. [7] See Justice Verma (Retd) Committee, Report of the Committee on Amendments to Criminal Law (New Delhi: Justice Verma (Retd) Committee, 2013) [8] Criminal Law (Amendment) Ordinance, 2013 (India), s 8. [9] “Activists Join Chorus Against Gender Neutral Rape Laws” The Times of India (7 March 2013). [10] MENON, Nivedita, “Gender Just, Gender Sensitive, Not Gender Neutral Rape Laws” Kafila (8 March 2013) [11] Partners for Law in Development (PLD), “Comments by Laxmi Murthy to Criminal Law Amendment Bill 2000”