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Rape Law in India: Making a case for Gender Neutrality

By Manasa Ram Raj


The Indian Penal Code clearly defines rape. It states that when a man has sexual intercourse with a woman under the following circumstance, it amounts to rape:
Against her will;
Without her consent;
When her consent has been obtained by inducing fear towards her or her loved ones;
When the man is not her husband and she consents believing him to be lawfully wedded to her;
Unsoundness of mind or intoxication where the woman is unable to understand the consequence of the act;
Under the age of 16, with or without her consent.  

The inherent impediment in this provision is that it defines rape as being exclusively perpetrated by a man against the victim who can only be a woman. By virtue of the language in this provision, non-cis-het women who are victims of rape are neglected from its application and therefore, are unable to avail any form of legal remedy or justice. 

The fight for gender-inclusive rape law

The 172nd Law Commission Report, dated March 2000, recommended the widening of the scope of this provision to make it gender-neutral. Subsequently, a Public Interest Litigation (PIL) was filed with Delhi High Court challenging the constitutionality of rape laws for not being gender-neutral shifted the focus on the Centre to assess the functionality of exiting provision under Section 375. The Petitioner for the PIL argued that men and trans people are often victims of rape and sexual harassment; and by denying them a route to legal remedy, the law denying them equality before the law as per Article 14 of the Indian Constitution. The demand for gender-neutral rape laws intensified further with the onset of #MeToo movement in India that sparked off the #MenToo movement, wherein men who were victims/survivours of rape and harassment shared their stories online. Around the same time, the Criminal Law (Amendment) Bill, 2018, was passed in the Rajya Sabha. While debating the Bill, the excerpt on the need for gender-inclusive laws from 172nd Law Commission Report was touched upon, the Bill in itself does not address the same. 

Following this, on July 3, 2019, the Home Ministry of India took a diabolical stance stating that rape under Section 375 and 375A cannot be made gender-neutral. The Centre stated that Section 375 was placed to address the large scale violence against women prevalent in India and therefore with that being its sole intention, the provision cannot be made gender-neutral. Through an affidavit to the Delhi High Court, the Centre explained, “These sections have been enacted to protect and keep a check on rising levels of sexual offences against women in this country.” The argument of the Centre also sheds light on majority belief that in a country with large scale violence against women, women themselves cannot be perpetrators of the crime, disregarding male and trans victims/survivours of rape. Moreover, laws to protect trans people have time and again been neglected at the Centre - and this appears to be one more following that trend. 

Where the numbers stand

The National Crime Record Bureau (NCRB) collects and analyzes recorded cases. Every year, the NCRB publishes statistics on Crimes in India based on cases registered with the police. According to NCRB reports from 2016, about 38,947 cases of rape were reported to the police. The same year, India saw an all-time high of 83% crimes against women with an all-time low conviction rate with just 18%. These statistics do not account for the reality of men and trans people. While the NCRB annual publication accounts for crimes against women and children, respectively, crimes against men and trans people have never been recorded. Most such instances go underreported due to fear of stigmatization by their own community. Every so often when NGOs collect this data through research, it does not clarify on the actual reality of the crime as it only takes into account a small pocket of the community and disregards various contextual factors; making it unreliable and inaccurate at a national level. Nevertheless, as per IndiaSpend reports, an NGO called Swasti Health Resource Centre conducted a controlled research only amonsgt South Indian States to map the cases of abuse of transgender from early childhood. The reports suggest that violence against transgenders starts early from the age 5, and about 68% reported increased instances of abuse between 11-15 years estimating that to be the most vulnerable age group. The research also estimates that about 40% of trans people have been raped or sexually harassed at some point in their life. Therefore, with no government authority reporting on the actual numbers of rape against men and trans people, the opportunity to make a case for them becomes an incorrigible feat. 

The paradox of marital rape and gender-specific rape laws

The exception clause to Section 375 directly contradicts the motive of the Centre with its argument to protect violence against women. According to the exception to this provision, “Sexual intercourse of a man with his own wife, the wife not being under the age of fifteen years, is not rape.” This simply implies that a man can have sexual intercourse with his wife, who is above the age of 15 years, regardless of her consenting and thus would not amount to rape. This provision affects the mandate of child marriage laws in India which recognises the legality of marriage only after the girl has attained the age of maturity, i.e., 18 years; and in terms of violence against women after marriage. 

While the Protection of Women against Domestic Violence Act, 2015, gives the wife a legal recourse for mental, physical and emotional abuse, Section 375 takes away her right of self-autonomy by placing the authority over her husband while engaging in sexual intercourse. Simply put, a husband can force sex on his wife and as a victim, she has absolutely no legal recourse. Unfortunately, there are no authoritative figures that track the instances of marital rape in India. The National Family Health Survey conducted last year showed that 9 out of every 100 men felt they had the right to force sex upon their wives, 11 out of every 100 men felt they had the right to refuse financial support if their wife refuses sex and 18 out of every 100 men felt they had the right to reprimand his wife for refusal of sex. Sneha, a Mumbai based NGO reported that out of about 660 cases of violence in marriage, about 160 women also reported marital rape. Similarly, a counselling centre of Bhabha Hospital in Mumbai reported that at least 60% of married women who approach them for sexual violence also report forced sex by their husbands. 

The paradox between Section 375 and POCSO Act

The affidavit by the Centre to the Delhi High Court also stated that “Section 375 must remain untouched as the ambit of POCSO Act covers all forms of sexual offences against minors, and Section 377 of IPC were adequate to cover all other sexual offences.

The Protection of Children from Sexual Offences (POCSO) is one of the most stringent laws implemented in India till date. It mandates that any person with any information on sexual activity or apprehension of such action is going to take place must mandatorily report to the police. In light of this, the paradox between Section 375 and POCSO Act manifests in two ways. One, POCSO clearly states that any person engaging in any sexual activity with a child under the age of 18 amounts to child sexual abuse. This directly strikes at the exemption clause of Section 375. Two, POCSO’s provisions are unlike Section 375. The language of POCSO uses the word person instead of man thereby making it gender-inclusive, much unlike the rape provision.

On the other hand, Section 377 deals with unnatural offences stating that any voluntary sexual activity against the order of nature is illegal. This straightaway neglects involuntary, non-consensual, sexual offences where a man or a trans person is the victim. Neither Section 375 nor Section 377 (definitely not POCSO) protects men and trans people from being raped. 

Rape under International Human Rights Law

Under the ambit of International Human Rights Law, the main source that governs the law against rape is derived from the Convention on the Elimination of All forms of Discrimination against Women and the United Nations Declaration on the Elimination of Violence Against Women. According to the provisions of the Declaration, violence against women is:
“any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” 
Can include (but not limited to) --
Physical, sexual and psychological violence occurring in the family including marital rape;
Physical, sexual and psychological violence occurring in the general community;
Physical, sexual and psychological violence perpetrated by the State. 

Having ratified the Declaration, India agrees to recognize the need for a uniform international human rights regime. The Declaration recognises the sexual autonomy of a woman regardless of her marital status and also explicitly states marital rape as a form of violence against women. Furthermore, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights recognise various sexual identities and orientation within its ambit. This recognition within the language of the Declaration paves way for gender-inclusive laws for rape and sexual violence. The Indian law governing rape has failed to address the legal dynamics on these two fronts. With the decriminalisation of same-sex intercourse in India as of 2018 under Section 377 of the IPC, India still has a long way to go in recognising that men and trans persons are often at the receiving end of sexual violence, the sexual autonomy of a woman, and marital rape as a crime.

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