IN THE LIGHT OF PRESENT CIRCUMSTANCES, THE NEED FOR THE IMPLEMENTATION OF GENDER-NEUTRAL LAWS GAINS PARAMOUNT IMPORTANCE.
AN ANALYSIS OF THE EFFECT OF THE EXCLUSION OF SECTION 377 FROM THE NEW CRIMINAL LAWS
A crime of the highest ordeal was committed in Uttar Pradesh’s Gorakhpur district on the 14th of June 2024 wherein a 23-year-old male committed alleged suicide after being gang raped by four men and less than two days later, on June 16, Suraj Revanna, the brother of Prajwal Revanna was arrested by Hassan Police on Saturday night after one of his colleague, a JDS party worker had filed a complaint alleging that he had been sexually assaulted by the former at his farmhouse on June 16. A complaint was registered against Suraj under IPC Sections dealing with unnatural sex, acts committed in furtherance of common intention, wrongful confinement, and the crime of criminal intimidation.
Had these crimes occurred only half a month later, after the implementation of the amended criminal laws, the treatment of the actions would have been very different which only goes to highlight, a grim reminder of a much larger, sinister problem that lurked at the horizons of the judicial system of the nation;
“Although the laws about sexual offenses in India are gender biased, they fail to adequately protect any gender.”
1.1 THE LAWS RELATING TO SEXUAL OFFENCES ARE GENDER BIASED IN INDIA.
Cases relating to rape or attempt to rape have horrified the citizens of this nation time and again, be it Aruna Ramchandra Shanbaug’s case in 1973, or the Nirbhaya incident of 2012; the media extensively covered the crimes and necessary amendments were brought into the legislation so much so that such heinous crimes can be averted and the criminals can be adequately punished.
However, on a more fine print reading of these amended laws, one cannot help but notice, that these newly framed laws and protections were put in to safeguard one particular gender, the females.
The rights and provisions of recourse to justice, in the case of rape, molestation, or sexual harassment of males or transgender persons remained a far-fetched dream and an elusive concept. In a nation that considers conversations surrounding a transgender individual a taboo, and rape of males as an event that is demeaning to one’s masculinity the exclusion of legal provisions only adds to the peril.
Section 375 of the Indian Penal Code, 1860 dealt exclusively with provisions relating to rape of females. The only legal provision that men or transgender individuals could turn to in the event of rape was Section 377 of the Indian Penal Code. However, the new criminal law, Bharatiya Nyaya Sanhita, 2023 has struck down even the provisions relating to S.377 of the previous code and no alternate section has been provided.
One legal concept that should be clarified at the very onset is the difference between reading down a section and striking down a section. The Hon’ble Apex Court in the case of Navtej Johar vs the Union of India(2018) had read down Section 377 In that judgment the section was never struck down; which in effect implied that consensual sex between people of the same gender and transgender persons would no longer be punitive, but the Section was retained since it was the only provision that covered the rape of men, trans-persons.
With the removal of Section 377 from the BNS, and in the absence of similar provisions the rights of men or transgender persons got substantially compromised as they no longer retained any legal protection against rape.
1.2 CONSEQUENCES OF STRIKING DOWN S.377 OF IPC AND THE ABSENCE OF ALTERNATE MEASURES.
The striking down of the section and the absence of alternate recourse will have far-reaching consequences on all three genders of society, to different degrees.
Since July 1, 2024, the rape of men and transgender individuals no longer remains an offense under the BNS. In the occurrence of such an event, only sections relating to grievous hurt can be invoked which have far less legal consequences than provisions relating to rape.
The non-operative nature of the section will also have far-reaching procedural effects on criminal laws. The foremost and most pertaining problem that would surface would be that cases filed before the first of July would be construed as rape videos. Section 377, meanwhile acts of similar nature being governed by BNS would no longer be rape.
This will result in two legal systems running parallel to one another and existing simultaneously in the same judicial sphere. Two crimes of similar nature committed on different dates shall have different punitive consequences. The punishment for a proven offence under S.377 ranged from imprisonment of 10 years up to a lifetime however punishment for a proven case of grievous hurt normally ranges from seven years to a maximum of ten years.
Even though, Section 18 of the Transgender Bill deals with the provision relating to sexual assault, the jail term for a proven offense ranges from six months to two years, which is significantly less than what S.377 previously covered.
Moreover, the exclusion of the section or alternative provision in the new code leaves the victims at the mercy of the police. With the absence of proper guidelines and adequate training sessions to sensitize police officers on how to deal with rape cases about men and transgenders, the avenue for them to seek justice becomes rather bleak.
Moreover, cases filed under 377 carried with them a higher nature of severity as opposed to ones of grievous hurt in respect of the imperativeness of arrests made or the ease of securing bail.
The exclusion of the provision also closed the only scope of filing a case by a married woman, in the event of rape by her husband. The Indian legislative or judicial system does not recognize the rape of a married woman by her husband as a valid offense and considers copulation as an essential conjugal right, which preserves the sanity of marriage. S.377 provided protection to married women in case of the performance of carnal intercourse against the order of nature, even by her husband. Now in its absence, there will be a high chance of wives being subjected to bestiality, sodomy, or other unnatural sexual activities with divorce being their only way out and even then such an act shall no longer constitute a penal offence.
1.3 THE SOLUTION FORWARD
Article 14 upholds the principle of equality before the law and forbids unreasonable discrimination. However, the current legal definition of rape—limited to acts where a man assaults a woman—creates an unjust gender-based distinction. The Supreme Court had observed, in the case of State of West Bengal v. Anwar Ali Sarkar (1952), that any law or order distinguishing between groups must meet specific criteria:
It must rely on a clear and logical distinction between groups.
This distinction must be relevant to the law’s intended purpose.
The current rape definition fails these criteria. There's no valid reason to differentiate the experience and trauma of rape based on the victim's sex or the perpetrator’s gender. Rape, as a severe violation of personal autonomy and dignity, should be recognized universally regardless of who is involved. By excluding men and transgender individuals from the rape definition, the law introduces unnecessary and unjustifiable distinctions, violating their fundamental right to equality.
With the amendment of criminal laws, the rape of men and transgender has now been categorized as grievous hurt which carries a maximum penalty of 7 years. The punishment is significantly less than that of life imprisonment as had been envisaged in the previous section and this results in gross undermining of the crime. This disparity overlooks the profound psychological and physical impact of rape and conveys that the victimization of men and transgender individuals is less significant. This reinforces damaging stereotypes about masculinity and falsely suggests that men cannot be victims of sexual assault.
Countries like Nepal, South Africa, and New Zealand have implemented gender-neutral rape laws, acknowledging that rape is a crime affecting everyone and providing equal protection regardless of gender. India should align its laws with these international standards and ensure equal protection for all.