Over the past decade, India has undergone significant legal reforms, particularly concerning laws related to sexual harassment and assault. The watershed moment was the 2012 gang-rape in Delhi, a horrific incident that not only shocked India but reverberated globally. The incident sparked a comprehensive review of India’s rape laws, particularly those detailed in Section 375 of the Indian Penal Code (IPC). Subsequent amendments aimed to bolster safeguards and ensure justice for survivors of sexual abuse.
These reforms primarily addressed crimes against women, reflecting a gender-specific approach. This has sparked considerable debate and advocacy for more inclusive legal reforms that recognize the needs of male, transgender, and non-binary individuals. Achieving gender-neutral rape laws in India is crucial for ensuring comprehensive protection and justice for all victims of sexual abuse.
Advocates argue that gender-neutral laws are necessary to address the underreported cases of sexual assault against men and transgender individuals, who often face societal stigma and legal barriers when seeking justice. Such inclusive reforms aim to create a legal framework that is sensitive to the diverse experiences of sexual violence survivors, irrespective of gender identity.
Implementing gender-neutral rape laws requires navigating complex legal, social, and cultural landscapes. Challenges include overcoming entrenched gender stereotypes, ensuring adequate legal representation and support services for all survivors, and educating law enforcement and judicial authorities about the nuances of gender-based violence.
Legal recommendations emphasize the need for laws that are not only inclusive but also effective in deterring and prosecuting sexual offenders. They underscore the importance of creating safe spaces where survivors feel empowered to report incidents without fear of discrimination or disbelief.
The journey towards gender-neutral rape laws in India represents a significant step towards justice and equality. It involves balancing inclusivity with protection and sensitivity to marginalized groups. By addressing these complexities and advocating for meaningful legal reforms, India can ensure that its legal system evolves to provide comprehensive justice for all survivors of sexual abuse, regardless of gender.
Current Rape Laws in India
The original Section 375 of the Indian Penal Code defined the offense of rape as engaging in sexual intercourse with a woman without her consent.[1] In 2013, the Criminal Law (Amendment) Act[2] expanded this definition to include acts involving penetration by any object or part of the body into a woman’s body, thereby broadening the legal parameters of what constitutes rape. Additionally, Exception 2 to Section 375 addressed marital rape, stipulating that it was punishable only if the wife was below fifteen years of age.[3]
The recently enacted Bharatiya Nyaya Sanhita (BNS) Act, replacing the Indian Penal Code (IPC), represents a significant overhaul of legal provisions concerning sexual offenses in India. Notably, the BNS Act updates the previous Section 375 of the IPC to Section 63, introducing stricter penalties and crucially criminalizing marital rape. This legislative advancement reflects a commitment to tackling sexual offenses with increased severity and recognizing the rights of victims.
Nevertheless, despite these strides, the BNS Act maintains a gender-specific approach, similar to its predecessor, the IPC. This limitation means that it does not adequately protect male, transgender, and non-binary victims of sexual abuse. The absence of gender-neutral provisions in the BNS Act underscores a continuing disparity in legal protections, leaving certain segments of society vulnerable to underreporting and injustice.
While the inclusion of marital rape as a punishable offense marks a progressive step forward, advocates and legal experts continue to advocate for comprehensive reforms that encompass all genders. Achieving gender-neutral rape laws is essential to ensure equitable justice and protection for all individuals affected by sexual violence, irrespective of gender identity. Addressing this gap remains a crucial challenge in India’s ongoing efforts to strengthen its legal framework and uphold human rights in the face of evolving societal norms and expectations.
Necessity for Gender Neutral Rape Laws in India
In February 2021, a 28-year-old French woman filed a complaint alleging that an LGBTQIA+ activist had abducted and sexually assaulted her. The activist was charged under Sections 342 (wrongful confinement) and 354 (outraging modesty) of the Indian Penal Code (IPC). However, despite the victim’s accusation of rape, this charge could not be applied to the accused, who was female.
Instances of sexual violence where the perpetrator is female are relatively uncommon in India, where such crimes are typically perpetrated by men. However, overlooking cases involving female perpetrators risks perpetuating injustice against victims. Section 375 of the IPC defines rape as an act committed by a man, explicitly excluding the possibility of a man or non-binary individual being legally recognized as a victim of rape under this provision. This limitation underscores the urgent need for gender-neutral rape laws in India.
The movement advocating for gender-neutral rape laws has been diverse in its approach. Men’s rights groups have been vocal proponents, often focusing on reforming laws perceived to favor women at the expense of male and transgender victims. Central to their advocacy is the removal of the marital rape exception, arguing that its existence undermines the principle of marital sanctity and denies justice to victims within marriages.
Critics of current legal frameworks argue that by narrowly defining rape as a crime perpetrated only by men against women, the law fails to acknowledge the full spectrum of sexual violence and its victims. This gender-specific approach not only perpetuates stereotypes but also hampers efforts to address the complex realities of sexual abuse across all demographics.
The legal landscape’s reluctance to recognize female perpetrators of sexual violence complicates efforts to ensure equitable justice. Cases like the one in February 2021 highlight the inadequacies of current laws in addressing instances where women are accused of serious sexual offenses.
Efforts to reform India’s rape laws must therefore prioritize inclusivity and justice for all, regardless of gender identity. This includes revising legal definitions to encompass all potential victims and offenders, and ensuring that protections and support services are equally accessible to everyone affected by sexual violence.
Advancing gender-neutral rape laws in India is not merely a matter of legal reform but a crucial step towards affirming human rights and equality. By broadening legal definitions and dismantling outdated exceptions, India can forge a more just and inclusive society where all victims of sexual violence receive the protection and support they deserve. The Supreme Court’s 2018 decision[4] to decriminalize consensual same-sex acts by declaring Section 377 as unconstitutional is considered a welcoming step in the direction of modifying gender laws to reflect the changing needs of society.
Various legal experts and commissions have put forth specific recommendations to advance gender-neutral rape laws in India. The 172nd report of the Law Commission of India strongly emphasized equality before the law and equal protection of rights for all individuals. It recommended replacing the term “rape” with “sexual assault” and using “person” instead of “woman” to ensure inclusivity. Even though these suggestions were made in the year 2000, more than 2 decades later, nothing has changed.
Advocacy and Challenges in Gender-Neutral Rape Law Reform
On July 12, 2019, Shri K.T.S Tulsi introduced a private bill, the Criminal Law (Amendment) Bill, 2019 in the Rajya Sabha, aiming to comprehensively amend criminal statutes to extend protection against sexual assault to all individuals, including men and transgender persons, in addition to women. The proposed amendments sought to substitute the gender-specific terms “man” and “woman” with the inclusive phrase “any person” within Section 375 of the Indian Penal Code. This legislative initiative was informed by recommendations from the 172nd Law Commission Report but ultimately lapsed without enactment.
Similarly, Supreme Court lawyer Rishi Malhotra filed a Public Interest Litigation (PIL) seeking gender-neutral amendments to laws concerning sexual harassment and stalking under the IPC. The PIL challenged the use of the phrase “any man” in these provisions as exclusionary. However, the Supreme Court dismissed the PIL, characterizing it as an “imaginative petition.”
These endeavors highlight the continuous legal challenges and advocacy aimed at reshaping India’s legal system to guarantee fair protection and justice for every individual, irrespective of gender identity. Despite encountering obstacles, these initiatives underscore a changing discourse and persistent efforts toward establishing gender-neutral laws within India’s criminal justice framework. On October 13, 2020, the Supreme Court heard a writ petition seeking equal protection for transgender individuals against sexual violence. The bench, consisting of Honorable Justices A S Bopanna and V Ramasubramaian, issued notice[5] to Centre. The case has yet to be heard.
In December 2019, India implemented the Transgender Persons (Protection of Rights) Act, despite facing criticism and protests from its transgender community and a damning report from the consulting committee. This Act establishes a legal framework distinct from India’s Indian Penal Code (IPC) specifically for transgender individuals. According to the Act, any abuse perpetrated against transgender people can lead to imprisonment ranging from six months to two years, irrespective of the severity of the offense. In contrast, raping a cisgender heterosexual woman under the IPC carries a penalty of ten years to life imprisonment. In extreme cases, such as the infamous 2012 Delhi gangrape, perpetrators convicted of rape can face the death penalty.
Lawyers and activists like Advocate Rebecca John and Women’s right Activist Lawyer Flavia Agnes this will work in the line of harassment against women. [6] Feminist lawyer and advocate Flavia Agnes[7] raised concerns in response to the Commission’s recommendations that making the laws neutral would open up new avenues to harass marginalized sections and defeat the purpose of the rape law. “Historically and statistically, we need the special status of women… The view was that a parallel section could be added to take care of the needs of transgender people. I believe at some stage the laws could be gender-neutral but at this time, statistically given the high numbers, the need was to not tinker with the present law,” senior advocate Rebecca John told Article 14.[8]
Conclusion
The need for gender-neutral rape laws in India is clear. The existing laws fail to protect male, transgender, and non-binary victims of sexual violence. While amendments have broadened the definition of rape and criminalized marital rape, the language remains gender-specific, excluding many survivors from legal recourse.
Numerous petitions, commissions, and legal experts have advocated for gender-neutral laws over the years, arguing that equality and equal protection must extend to all individuals regardless of gender identity. Recommendations include replacing gendered terms with gender-neutral language, creating separate provisions for non-heterosexual relationships, or ultimately adopting a single, comprehensive sexual assault law.
Resistance remains from some feminist advocates who fear gender-neutral laws could undermine protections for women given the high rates of sexual violence they face. Striking the right balance between inclusivity and preserving existing safeguards is crucial. A phased approach with parallel provisions may offer a viable path forward.
India’s rape laws must evolve to meet the imperative of providing justice for all survivors. Extending legal protections regardless of gender upholds constitutional principles of equality and human rights. Carefully crafted, gender-neutral laws can validate the experiences of marginalized groups and ensure the trauma of sexual violence is fully acknowledged and penalized across society.
[1] Standard, B. (no date) What is Section 375 IPC, Section 375 News, Section 375 Amendment, Section 375 Punishment, Business Standard. Available at: https://www.business-standard.com/about/what-is-section-375 (Accessed: 25 June 2024).
[2] (No date) Criminal law (amendment) act, 2013. Available at: https://www.iitk.ac.in/wc/data/TheCriminalLaw.pdf (Accessed: 25 June 2024).
[3] Sharma, R. (2020) Analysis of section 375, IPC: Rape, Black n’ White Journal. Available at: https://bnwjournal.com/2020/06/13/analysis-of-section-375-ipc-rape/ (Accessed: 25 June 2024).
[4] Shefali Chaudhary, Judicial Encounters: Indian Courts and Transgender Identity, 12 NUJS L. Rev. 3-4 (2020), available at https://nujslawreview.org/wp-content/uploads/2020/01/12-3-4-Chaudhary.pdf
[5] 1399/2021/31/15/26913 Order, March 12, 2021, available at https://sci.gov.in
[6] “Gender neutral rape law? Legal experts disagree, call it flawed understanding of law,” ThePrint – PTIFeed (last visited June 25, 2024), available at https://theprint.in.
[7] “Law, Ideology, and Female Sexuality,” Economic and Political Weekly (2002), available at: https://www.epw.in/journal/2002/09/perspectives/law-ideology-and-female-sexuality
[8] “Why It Is Time for India to Consider Gender-Neutral Rape Laws,” Article-14 (last visited June 25, 2024), available at: https://article-14.com/post/why-it-is-time-for-india-to-consider-gender-neutral-rape-laws-6136d766effef
Author: Mahipal Parmar
Juris Centre 