Harsh Gupta

| @ | July 30,2019

[dropcap]T[/dropcap]HE Criminal Law Amendment Bill, 2019 was introduced in the Rajya Sabha by way of a Private Members’ Bill by K T S Tulsi, to make the offence of rape, gender-neutral. The law as it exists in the present form recognizes only a woman as a victim of rape.

After the judgment of the Supreme Court in Navtej Johar vs Union of India, which read down Section 377 to not include consensual sexual intercourse between individuals of the same sex, and/or transgenders, coupled with the language of Section 375 of the Indian Penal Code (IPC) which expressly states that only a woman can be a victim of rape, the only remedy for a rape victim other than a heterosexual woman, lies under Section 377 of the Indian Penal Code, 1860 which criminalizes unnatural sex.

This becomes problematic since the law as laid down by the Supreme Court recognizes consensual sex between two individuals as legal, irrespective of their sex. If this is the case, non-consensual sex has to be treated as rape and not an unnatural sexual offence. Therefore, the reasoning for making the offence of rape gender-neutral is based on the following:

  1. Recognizing that individuals who are homosexual and/or belong to the transgender community can be victims of rape; and
  2. Recognizing that only a “man” cannot be a perpetrator of a sexual offence.

Let us examine the bill, while keeping this in mind, we shall examine the bill.

 

Highlights of the Bill

 

Introduction of definition of “Modesty”:The bill proposes to add the definition of “modesty” to Section 2 of the Indian Penal Code, 1860 describing it as an attribute that attaches to the personality with regard to the commonly held belief of morality, decency and integrity of speech, behaviour, in any man, woman or transgender.

It has to be noted though, this appears to be an error in drafting since Section 2 of the IPC deals with jurisdiction and Section 6 is the appropriate section for definitions.

Amendment to Sections 354 – 354D of IPC: Section 354 to 354D which define the offences of outraging of modesty, sexual harassment, criminal intent to disrobe, voyeurism and stalking have been modified to the extent that the sex of the perpetrator of the offence and the victim is irrelevant.

Amendment to Section 375 of IPC: The Bill proposes to replace pronouns referencing “men” and ‘women’ specifically with words such as “any person” or “other person” effectively making the offence of rape gender-neutral. However, sub-clause (fourthly) according to which consent under the impression that the man is her husband is rape has not been modified and rightly so.

The Bill also proposes to replace the words ‘penis’ and ‘vagina’ with the phrase ‘genital’ which is subsequently defined under Explanation 1 to mean the penis and vagina. However, this change will not apply to sub-clause (b) which states that the penetration of any object not being a penis shall amount to rape as well.

Insertion of Section 375A:The Bill proposes the insertion of a new section that defines the offence of sexual assault as the intentional touching of the genitals, anus or breasts or making one person touch such parts of the other person without consent or the use of unwelcome words, gestures which creates an “unwelcome threat of actionable nature” with a punishment of rigorous imprisonment of up to three years and/or fine. Explanation 1 adopts the definition of genitals and Explanation 2 adopts the meaning of “consent” (excluding the proviso) from the new proposed Section 375. Explanation 3 to this section explains the word “touches” as touching of sexual nature without consent and in the absence of reasonable belief that the victim has consent for the same.

Sections 376A, 376A, 376C & 376D of IPC: This Bill proposes to make the offences listed under these sections gender neutral as well, apart from specific sub-sections related to the rape of women and children in custody.

Apart from this, the appropriate sections of the Code of Criminal Procedure, 1873 and Indian Evidence Act, 1872 are amended to include the new proposed Section 375A.

 

REMARKS:

 

The Bill has evaded possible problems that may have arisen with the definition of transgender, by not defining it at all, especially due to conflicts that may arise with the proposed Transgender Bill. Instead, it has just added a category called ‘other’ which includes transgenders. This way, anyone who does not identify with one of the binaries can still have recourse under the amended IPC, irrespective of the restrictive definition of transgender that may be introduced in other legislations.

The most problematic aspect of this Bill is its attempt to define the term modesty. The definition of ‘modesty’ that is sought to be inserted is one that is very subjective based on commonly held beliefs of people. The rationale for including this definition is unclear since it creates confusion regarding what constitutes modesty given that it bases modesty on very subjective beliefs of decency.

The Supreme Court in the case of Tarkeshwar Sahu vs State of Biharin the context of Section 354 of the IPC had defined modesty of a woman by stating that the essence of a woman’s modesty is her sex. By this standard, any act against a woman that interferes with her bodily integrity solely because of her sex would amount to an offence under Section 354. It would have been appropriate if the same standard which is absolute in interpretation be followed.

While the introduction of the offence of sexual assault must be appreciated, there are certain problems with the terminology that has been used in the new proposed Section 375A. Firstly, what constitutes an “unwelcome actionable threat” is unclear from the provision. Unfortunately, vague terminology has been used to discern the commission of an offence since the perception of what constitutes an “actionable threat” can be extremely varied in any person who is in the fear of being sexually assaulted.

Secondly, while it does adopt the definition of “consent” under Explanation 2 from Section 375 which also defines consent to include any form of non-verbal communication, communicates a willingness to participate in the specific act. However, it has not adopted the proviso from Section 375 which categorically stated that mere non-resistance of penetration shall not amount to consent.

In today’s day and age, there is no apparent reason to deliberately leave a lacuna in the law. It is thus necessary to include a corollary proviso here as well to the effect that non-resistance to touching, shall not amount as consent.

Thirdly, Explanation 3 while defining “touches” states that the word shall mean touching of a sexual nature without the consent of the victim and in absence of a reasonable belief that the victim has consented for the same. The problematic definition of consent as explained above coupled with the use of the phrase “reasonable belief” entirely dilutes the essence of the section. The definition of consent is as it is an empty definition under the new section and the phrase “reasonable belief that..” acts like an umbrella that can be used to justify any form of assault by using it as a defence. Alternatively, the Bill should have just adopted an analogous proviso to Explanation 2 and not included Explanation 3 at all.

After the refusal of the Supreme Court to make rape a gender-neutral offence stating that it is the job of the Parliament, the thought of introducing a Bill to such effect is a welcome measure.

However, it is necessary that these changes are implemented systematically and holistically so that do not result in the exclusion or creation of laws that are not sufficient to tackle the various forms of sexual assault. It also needs to be pointed out that since an amendment to Section 375 of the IPC was being proposed, marital rape could have been criminalized as well. With the increase in the discourse on such topics, it is pertinent that the Legislature pulls its socks up and acts mindfully while implementing these transformative reforms in criminal law.

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