Mid-Semester Research Project

Subject: Law of Crimes 1

Semester I
on

Addressing the Gender Specificity of Rape Laws in India

-------------------------------------------------------------
for
Jindal Global Law School
O.P. Jindal Global University
(Batch: 2023-2026)

Submitted by: Submitted to:

Bipasha Handa Professor Aditi
JGU ID:
23013897

1
The student would like to thank prof. Aditi and prof. Gayatri for providing all the support and guidance needed
during this research project.
Introduction

The gender specificity in rape laws has been a point of contention for a long time. Indian
women’s movement has focused on advocating for a strong gender bias within the rape laws
since their anti-rape campaign began in the 1980s. 2 However, over time, other gender and
vulnerable groups have surfaced claiming their right to protection from sexual offences and
breaking the popular perception of women as a victim. The purpose of this paper is to
discover the realm of gender neutrality in the prevailing rape laws in India and to establish
whether such a proposition is possible in the context of India.

2
Agnes, Flavia. "Law, ideology and female sexuality: Gender neutrality in rape law." Economic and Political
Weekly (2002): 844-847.
The History of Rape law in India and the women’s movement

Rape, under section 375 of the Indian Penal Code, has been a topic of debate and discussion
since the adjudication of Mathura Rape case 3 in 1972. There was an uproar of emotions in the
country due to the unjust decision of the court and the further restriction on access to courts
for the victims of sexual harassment. The case laid down arbitrary indicators to determine
consent which unjustly differentiated between survivors of rape based on injuries sustained.
According to the court, “passive submission” by the victim was an indicator of consent.

Understanding the negative implications of the 1972 judgement, four professors wrote an
open letter to the Chief Justice of India, demanding the conviction of the accused in the
Mathura Rape case, as well as a shift in the burden of proof to the accused. 4 Soon after,
catering to the populist demands, archaic provisions were amended in the Criminal Law
(Second Amendment) Act of 1983. Punishment was made stricter to act as a deterrent and the
demand for shifting the burden of proof had been partially accepted, in cases of custodial
rape. The women’s movement, which had worked in and around the anti-rape campaign since
the 1980s, believed that the amendment would pave the way for significant changes.
However, the unfolding of cases in courtrooms revealed that nothing had changed, with the
statistics of reported cases increasing and a concurrent decrease in conviction rates.

With the previous issues unsolved, new ones started to emerge. The scope of the definition of
rape extended only to penile-vaginal penetration. The rape law, made for the protection of
women, began to be used against them. Men who penetrated women with bottles, sticks, and
iron rods, causing danger to the lives of women, simply got away with outraging the modesty
of women under section 354 of IPC. 5 It was not until the Nirbhaya Rape case 6, that a
Criminal Law (Amendment) Act was introduced to expand the scope of the definition of rape
under section 375. As a result, the law as it stands today, penalizes different forms of
penetration. The depth of penetration as well as the tool of penetration stands immaterial.

With the expansion of the scope of penetration under the rape law, a question concerning its
gender specificity and biasness started to emerge. The law did not only exclude men from its
protection but also transgenders, male children, and other sexual minorities. The suggestion

3
Tuka Ram and Anr vs State of Maharashtra, 1978 A.I.R. 185 (India).
4
Singh, Aradhya. "Gender Inequality in Rape Laws." Issue 4 Int'l JL Mgmt. & Human. 4 (2021): 2035.
5
Agnes, Flavia. "Law, ideology and female sexuality: Gender neutrality in rape law." Economic and Political
Weekly (2002): 844-847.
6
Mukesh & Anr. v. State for NCT of Delhi & Ors, (2017) 3 SCC 717
to make rape laws gender-neutral emerged several times over the years. The National
Commission for Women came up with a bill titled ‘Sexual Violence against Women and
Children’ in 1993, introducing two factors to gender neutrality within the law:

1. Neutrality with respect to the Victim

2. Neutrality with respect to the Perpetrator

The bill suggested that within the context of India, only the victim can be made gender-
neutral but not the perpetrator. Consequentially, the 172nd Law Commission Report came out
in 2000, suggesting a completely gender-neutral law based on its analysis of different
jurisdictions. 7 Subsequent to the Nirbhaya Rape case, two major recommendations came out:
the Justice Verma Committee Report (hereinafter JVC Report) and the Criminal Law
(Amendment) Ordinance, 2013. The JVC Report was in consonance with the Bill that was
introduced by the National Commission for Women, making the victim gender-neutral but
not the aggressor. The Criminal Law (Amendment) Ordinance, 2013, however, was in
consonance with the Law Commission Report, making sexual assault gender-neutral.
However, the court changed its stance a few months later. Therefore, maintaining the gender
specificity in the Criminal Law (Amendment) Act, 2013. 8 The new bill by the parliament,
Bharatiya Nyaya Sanhita, 2023 has again maintained the gender specificity for both the
victim and the perpetrator. The only inference of gender neutrality would be under Gang
Rape provisions wherein the language used for the perpetrator is “persons”. 9

Conflict of Interests

The gender divide in the rape law has negatively affected not just men but also boys under
the age of eighteen. During the anti-rape campaign of the women’s movement, cases of abuse
of children in children’s homes and reception centers started to emerge, not just for children
of the female gender but also for the male gender. Sheela Barse, a child rights activist, was
amongst the first to break her silence on the gender disparity in rape laws and its
consequences on male children. The antiquated definition of rape that convicted only penile-
vaginal penetration as well as the rigid demarcation of the gender divide, led to the use of the
archaic provision of Sodomy under Section 377. Section 377 of the IPC covers sexual acts
7
Supra, note 4
8
. PATHAK, Harshad. “Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law.” Asian Journal of
Comparative Law, vol. 11, no. 2, 2016, pp. 367–397., doi:10.1017/asjcl.2016.8.
9
Bharatiya Nyaya Sanhita Bill, 2023
under unnatural offences. In light of this information, it becomes important to understand the
socio-economic and political situation of the sexual minorities covered under the LGBT
(Lesbian, Gay, Bisexual, and Transgender) community who campaigned for the deletion of
Section 377.

Around the 1990s, the government marked homosexual men and prostitutes as ‘high-risk’
groups, calling it a preventive measure against the spread of AIDs in the public domain. The
sexual minority groups and activists soon started questioning their marginalized existence in
society and the social stigmas attached to them. They questioned the subsistence of age-old
provisions like Section 377 in a modern democratic society, that effectively infringed on their
rights bestowed by the Constitution. The Sexual Violence Against Women and Children Bill
that was introduced by the National Commission for Women advocated for new and evolved
laws that would impart justice to vulnerable segments of society. The Bill suggested the
deletion of Section 377 which as a consequence would grant recognition to same-sex
relationships. 10 However, the bill failed to account for the vulnerable children whose only
means of justice was the same section.

Therefore, a conflict of interest arose between two marginalized groups within the ambit of
Section 377. For one group, deletion of the section meant recognition, protection from
harassment, and a significant step against the historical discrimination and humiliation
associated with outdated social norms. And for the other, maintenance of the section within
the law meant protection against sexual harassment. 11 The solution to this rested in the
amendment of rape laws from gender-specific to gender-neutral.

Acting upon the conundrum, the government came up with the Protection of Children from
Sexual Offences Act (POCSO) in 2012 which protected children from a broad range of sexual
acts, irrespective of their gender. Soon after, the court, in the case of Navtej Singh Johar v
UOI 12, struck down Section 377 as unconstitutional.

10
Supra, note 4
11
Supra, note 4
12
Supreme Court Observer. “Constitutionality of Section 377 IPC - Supreme Court Observer.” Supreme Court
Observer, 16 June 2023.
Gender Neutrality in Rape Law

Providing relief to children with the male sex solved only part of the problem. The rape laws
in India still envision a scenario wherein only a man can sexually assault a woman. Not only
does it exclude men from within the ambit of its protection, but also the transgender
community. Such characterization of rape by the state informs the stereotypes ascribed to
different genders by the society. Justice Chandrachud, in the case of Babita Puniya 13, held a
strong stance against the differential treatment of men and women based on gender
stereotypes. To make rape law gender-neutral would be to acknowledge that the archaic roles
attributed to genders are no longer relevant. By maintaining gender-specificity in rape laws,
the state effectively regulates sexuality through the legal system and perpetuates the gender
norms of a patriarchal society. 14

The Constitution of India is considered to be one of the most comprehensive documents that
bestow upon its people certain essential human rights under Part III of the Constitution. The
equality and anti-discriminatory. The Constitution also embodies within it several rights that
call for equality and against the anti-discriminatory practices in society. Such Articles include
14, 15, and 21. As per Article 14, “the State shall not refuse to any person inside Indian
territory, either equality before the law or equal protection of the laws.” According to Article
15(1), the “State is not allowed to discriminate against someone based on their race, caste,
sex, place of birth, or any combination of these factors alone.” Article 21 states that “no
person shall be deprived of his life or personal liberty except according to procedure
established by law” 15 and has been interpreted to include the right to live with dignity. 16 All
these articles read in light of Section 375 gives us the image that rape laws in India are
violative of essential right, i.e., fundamental rights, and discriminates based on gender.
Additionally, the rape laws as mentioned under IPC, are the only legal recourse to extreme
sexual assault cases wherein a victim’s physical integrity is violated, and to withhold such
remedy based on gender would be to expose certain sections of the community to exploitation
and harassment.

Furthermore, Article 51(c) of the Constitution of India endeavours to “foster respect for
international law and treaty obligations”. The Universal Declaration of Human Rights calls

13
The Secretary, Ministry of Defence v. Babita Puniya & Ors, Civil Appeal No. 1210 of 2020
14
Bindal, Megha, and Prakshay Shrivastava. "Gender-Neutral Rape Laws: Addressing the Long-Standing
Conundrum in Indian Laws." Asian Law & Public Policy Review 8 (2023): 119-136.
15
Constitution of India
16
Maneka Gandhi vs. Union of India 1978 SCR (2) 621
for equality and equal treatment of all citizens under Articles 2, 7, and 8 as well as its
Preamble. The clauses under this declaration have been made gender-neutral purposefully to
perpetuate that everyone is deserving of equal rights irrespective of their gender. 17 In light of
all this information, it becomes difficult to understand why India should not adopt gender
neutrality.

The discussions surrounding amendments, whether for or against gender neutrality in rape
law, have failed to take into account the third gender, i.e., the transgender community. The
offenses against transgenders have been regulated under the Transgender Persons (Protection
of Rights) Act 2019. However, the act in itself undertakes unequal treatment of transgenders
as victims of sexual offences. The act lays down the punishment for physical and sexual
assault as a minimum of six months and a maximum of two years. In contrast is the
punishment prescribed for sexually violating a woman is a minimum of ten years which may
be extended to life. This proves that little has been done to improve the situation of
vulnerable communities like that of Transgenders, who have historically faced extensive
discrimination and humiliation as a result of societal norms. It was believed that the NALSA
Judgement 18 would be a substantial step towards non-binary inclusion, however, they
continue to face harassment simply because society does not envisage them as a victim. 19

Can we have Gender Neutral Rape Laws in India?

Before we argue for gender neutrality in India, it is important to mention a few important
points that could have been taken into consideration while establishing gender-specificity in
rape laws.

First, the model of equality that is followed in India is Equity. Article 14 lays down that
equality should be established in concurrence with equal protection of laws. Article 15(3),
promulgating positive discrimination, states that “nothing in this article should prevent the
State from passing particular laws protecting women and children.” 20 The Constitution
makers recognized the fact that women have historically been at a disadvantage. Therefore,

17
Supra, note 13
18
National Legal Ser. Auth vs Union of India & Ors. AIR 2014 SC 1863
19
Supra, note 3
2020
Constitution of India
gender specificity within rape law was a conscious decision addressing the power relations
between the two genders within a wider social parameter. 21 In the recent case of Supriyo @
Supriya Chakraborty & Anr. vs Union of India 2022, the court addressed the fact that certain
provisions have been enacted with a gender bias to address the long-standing structural
inequalities and the harassment women continue to face. 22

Second, enacting gender-neutral rape laws irrespective of the power inequalities and the
difference in bargaining power, will only act to strengthen those already in power. A
complaint of sexual assault would attract a counter-complaint, further discouraging women
from filing complaints. 23

Third, male children already have protection under the POCSO Act, which is a gender-neutral
law. 24

The enactment of gender-neutral rape laws might sound attractive, however, the historical
disadvantages and marginalization of women coupled with the unequal power relations put
women in a vulnerable situation. Therefore, in India, making the perpetrator gender-neutral
would be to put women in a particularly disadvantaged situation. 25 However, the approach
suggested by the JVC Report can be adopted as a step toward recognition of the harassment
faced by men and other sexual minorities. The victim can be made gender-neutral providing
some sort of relief to those aggrieved by their non-inclusion.

Conclusion

Flavia Agnes correctly explicates the conundrum, “A gender-neutral rape law would open up
avenues for inflicting even greater trauma and humiliation to an already marginalized section
and hence defeat the purpose of a reform.” In a country like ours, where women have faced
long-standing discrimination, it is important to advocate for gender-specific laws to make
their situation in society slightly better. Significant steps have been taken in the advancement
of equality for women, however, gender equality within rape law would backtrack them and

21
Supra, note 4
22
Writ Petition (Civil) No. 1011 of 2022
23
Menon, Nivedita. “Gender Just, Gender Sensitive, NOT Gender Neutral Rape Laws.” KAFILA -
COLLECTIVE EXPLORATIONS SINCE 2006, 8 Mar. 2013
24
Supra, note 4
25
Supra, note 13
make their societal condition worse considering there is still a certain sense of stigma
attached to filing complaints against a man who is an assaulter.

However, this is not to refute or dismiss the fact that other genders, especially transgenders,
do face sexual assault. Acknowledgment that other genders face sexual harassment is
extremely important. Irrespective of gender, rape is a “traumatising violation of the victim's
body.” No recourse to such violation adds to the mental trauma. 26 Therefore, there is a scope
of gender neutrality within the rape law on the part of the victim.

26
Supra, note 13