We live in a time that acknowledges gender neutrality. The gender-neutral movements have bought reforms in policies, languages, etc., and avoided the idea of preference towards a particular gender. Jurisdictions that have adopted gender-neutral laws include Canada, all Australian states, the Republic of Ireland, Finland, England and Wales, and the vast majority of states within the United States.[i] However, the definition of rape in India under sections 375[ii] and 376 of the Indian Penal Code[iii] is still biased. The section believes that females are the only victims of rape and a man is the only perpetrator. Male rape was first recognized under English law in 1994 when the definition of rape was revised.[iv]
RESPONSE OF INDIAN COURTS TO GENDER-NEUTRAL LAWS
On 2nd June 2022 the Kerala High Court Judge Mustaque remarked on a case saying “Section 376 is not a gender-neutral provision. If a woman tricks a man under the false promise of marriage, she can’t be prosecuted. But a man can be prosecuted for the same offense. What kind of law is this? It should be gender-neutral,”[v] In a recent judgment from Kerala High Court, Ramachandran v. State of Kerala, the judgment said that “It is to be remembered that the statutory provisions of the offense of rape as understood in the Indian Penal Code, is not gender-neutral. A woman, on a false promise of marrying and having a sexual relationship with a man, with the consent of the latter obtained on such a false promise, cannot be punished for rape. However, a man on a false promise of marrying a woman and having a sexual relationship with the woman would lead to the prosecution’s case of rape. The law, therefore, creates a fictitious assumption that the man is always in a position to dominate the will of the woman. The understanding of consent, therefore, has to be related to the dominant and subordinate relationship in a sexual act.”[vi]
In the year of 2018, a petition was filed in the Supreme Court by the Criminal Justice Society of India, challenging the Constitutional validity of Section 375 of the Indian Penal Code on the ground that the provision is not gender-neutral and violates Articles 14, 15, and 21 of the Constitution. Since this particular section does not take into account cases where a rape victim could be a man or a transgender person. To which the court replied, “This issue is valid but the provision which is otherwise valid cannot be struck down.”[vii]
THE CONSTITUTIONAL VALIDITY OF GENERAL NEUTRAL LAWS.
Article 14 of the Indian Constitution reads: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”[viii] Keeping the following law in mind, we know that men and transgender persons must be equally protected under the law. They also must be protected and kept safe from crimes of sexual harassment, sexual abuse, etc. In a Supreme Court case of Vishakha and Ors. Vs. State of Rajasthan & ors,[ix] the definition of sexual harassment provided was gender-neutral. However, a statement made by the judge during the case was women-centric and completely deprived the definition of sexual harassment of being gender-neutral.
DOES THE INDIAN SOCIETY RECOGNIZE AND SUPPORT ALL VICTIMS?
There was always an ideology that prevailed in our country that men are ‘machos’, they don’t cry, and are strong. We get to hear of cases even today where a man has raped a woman because he faced humiliation or rejection. This is major because of the history of our country which is rooted in Patriarchy, Gender-stereotyping, etc. which is why the person tends to think that they are perfect and anybody going against them must pay the price. A few instances of sexual assault which do not conform to the male-on-female paradigm occur far more frequently than one could imagine. Once a Goa Police Officer arrested a Delhi woman for wrongfully confining and sexually assaulting a French woman.[x] Which active feminist scholars like Laxmi Murthy commented “men too can be sexually assaulted- by men, as well as by women (in rare cases)” and that “women to are capable of perpetrating sexual assault on men”.[xi] The Ministry of Justice in the UK released a report in 2013 that in 2019 approximately 85,000 women and 12,000 men were raped.[xii] Despite such huge numbers of offenses against men, these crimes are being unrecognized in our society.
LEGAL PROTECTION AGAINST SEXUAL OFFENSES TO A TRANSGENDER PERSON
The Transgender Persons (Protection of Rights) Act, 2019, under Chapter 8 Section 18(d) provides punishment to whoever tends to act causing sexual abuse to a transgender person, making them liable to imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.[xiii]
The awareness of General-Neutral sexual offenses laws must be promulgated extensively. During the recent lockdown time due to Covid-19, we heard of domestic violence cases against women, the number of possibilities of other genders also being harassed during such tough times is simply silenced. There is a need for the Government and state officials to recognize and protect all persons from such offenses. We also need the judicial body to be stringent with the facts of the case and deliver judgments without any bias.
Author’s Name: Princy Dsouza (Government Law College, Mumbai)
[ii] IPC 1860, Section 375
[iii] IPC 1860, Section 376
[iv] supra note i
[viii] Article 14 from the Constitution of India.
[ix] Vishakha and Ors. Vs. State of Rajasthan & ors (1997) 6 SCC 241.
[x] Mohua Das, Goa Police Book Delhi Woman for Sexual Assault on French Woman, Times of India (2021) available at <https://timesofindia.indiatimes.com/city/delhi/delhi-based-lgbt-activist-held-in-goa-after-sexual-assault-complaint-by-french-woman/articleshow/81300736.cms>.
[xi] Partners for Law in Development (PLD), Comments by Laxmi Murthy to Criminal Law Amendment Bill 2000 at 3, online: PLD, <http://pldindia.org/wp-content/uploads/2013/04/comments-by-Laxmi-Murthy-to-Criminal-Law-Amendment-Bill-2000.pdf> (PLD, “Comments by Laxmi Murthy”).
[xii] An Overview of Sexual Offending in England and Wales, Ministry of Justice, Home Office and the Office for National Statistics, available at <https://www.gov.uk/government/uploads/system-offending-overviewjan-2013.pdf>
[xiii] Section 18, Transgender Persons (Protection of Rights) Act, 2019.