Why Parliament should consider Gender Neutrality in Indian Penal Code
It is pretty unfortunate for a democratic country governed by the Rule of Law to have gender-biased legislation that assumes a man to be the perpetrator and women to be the victim of sexual offenses. The rape laws in India blatantly neglect the offense committed towards other genders. Section 375 assumes the assaulter to be a ‘man’ and a victim to be a ‘woman’ in the terminology. The issue of gender neutrality of rape laws was first voiced in Sudesh Jhaku v. KC Jhaku[i] where the desire to make ‘rape’ a gender-neutral offense. After seeking recommendations from the National Commission for Women and Law Commission’s 176th report, the Criminal Law Amendment Bill, 2012 was introduced which sought to replace the terminology of the offense of rape with gender-neutral one. But the Criminal Law (Amendment) Ordinance, 2013 was repealed amidst protests by various women right groups and till now the law follows gender binary terms.[ii] The laws completely fail to fulfill the promise made to the transgender community in Nalsa v. Union of India[iii], where the Supreme Court categorically mentioned that the discrimination based on gender identity includes any discrimination exclusion, restriction, or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution. If the spirit of the judgment is to be followed, it is pretty obvious that the binary structure of the rape laws is not in compliance with the principles formulated by the Supreme Court. The principle of equality should not be followed in the categorisation of victims. Some arguments suggest that female-on-male rape is not possible. Arousal is thought to imply consent. Sarrel and Masters (1982) conducted a study on 11 men who were victims of sexual assault by women. The men underwent anxiety, fear, and terror, still, they responded sexually even in the threat of castration. Levin and van Berlo (2003) after studies concluded that arousal and orgasm are not the indicators that the subject resorted to consent. Thus genital arousal and orgasm have no validity and should not be considered.[iv]
Another reason upholding the gender neutrality of the rape laws is the incoherency of POCSO (Prevention of Children from Sexual Offences Act) and the Indian Penal Code. POCSO enacted by the Parliament is in itself a gender-neutral statute and uses ‘person’ in its reference to the victims and the perpetrator whereas the provisions of rape in IPC uses ‘man’ about the perpetrator and ‘woman’ in reference of the victim. This creates a lacuna where a person guilty of committing penetrative sexual assault on a girl below 12 years would be penalized with a minimum punishment of life imprisonment or capital punishment by section 376AB read with section 42 of the POCSO Act. But in a similar situation when the same act is committed against a boy, the perpetrator shall be punished with 10 years or life imprisonment since there is no parallel provision for rape in IPC.[v] This inconsistency creates a lacuna in the penal statutes and is still ignored by the Legislature. The categorization of the victims is a blatant violation of Article 14 of the Constitution. The interest of the public is to be upheld at all costs and such lawlessness is violative of the principles of natural justice. Thus need for gender-neutral laws is a necessity that is being ignored by the legislature.
[i] 1998 Cr.LJ 2428.
[ii] LawEscort. 2019. Men Too: Not Always The Perpetrators- Lawescort[online] Available at: https://lawescort.in/2019/10/men-too-not-always-the-perpetrators/
[iii] AIR 2014 SC 1863.
[iv] Jai Vipra, A Case For Gender Neutral Rape Laws in India, CCS Working Paper-286, July 2013, https://ccsinternship.files.wordpress.com/2013/05/286_case-for-gender-neutral-rape-laws-in-india_jaai-vipra.pdf
[v] Abhishek Gupta. Decoding ‘Deterrence’: A Critique Of The Criminal Law(Amendment) Act, 2018, ILI Law Review, Summer Issue 2018, http://ili.ac.in/ilrsum18.html
