On Friday (February 2nd), a Supreme Court bench headed by the Chief Justice of India heard a petition for making laws pertaining to rape, sexual harassment, stalking, voyeurism, outraging the modesty etc gender-neutral. The plea filed by a SC lawyer Rishi Malhotra argued that the word “any man” used under these offences in Indian Penal Code be declared ultra vires the Constitution. A similar petition was also taken up in the Delhi High Court last year by Sanjiv Kumar, seeking the amendment of rape laws to be made gender-neutral through challenging the Constitutional validity of Sections 375 and 376 of the Indian Penal Code. The Delhi High Court hearing the case in September, 2017, sought the government’s response in this matter. The case will be coming up once again before the bench on 5th March, 2018.
The issue of gender-neutral rape laws received attention during the passage of the Criminal Law (Amendment) Ordinance, 2013 which contained gender-neutral provisions for the offences of rape, sexual harassment and sexual assault following recommendations made by the Justice Verma Committee Report. This meant that women could now be charged with these offences as perpetrators. When it was passed in 2013, a large section of civil society was rightly vocal against these gender-neutral provisions, highlighting the high probability of double victimisation of women wherein complaints of rape, sexual harassment and assault could be met by counter-complaints to build pressure to withdraw their cases.
The question of gender comes into play when referring to the perpetrator of the crime and when referring to the victim in the legal definition of rape. While it may be accepted that marginalised communities would suffer more harm by gender-neutrality assigned to the perpetrator, it would be in their interest to if statutes contain gender-neutral terminology for the victim who may be female, male or transgender.
The current definition of rape is given under Section 375 of the Indian Penal Code, where rape can be committed by a man on a woman. Section 376 of the IPC contains provisions of aggravated rape where the perpetrator is in a position of power over the victim, and these offences receive harsher punishments under IPC. Section 114A of the Indian Evidence Act 1872 which was introduced after the Criminal Amendment Act 2013 shifted presumption of an absence of consent in prosecution for rape where the woman in her evidence testifies that she did not consent in such situations of aggravated rape. These provisions show the importance of the power equation when it comes to rape. However, the presumption that such skewed power equations can only occur between a man and a woman is a restricted view of reality. Transgenders as well as males may be victims of these skewed power equations just as well.
Under the current laws, a woman can be prosecuted for being an abettor to rape under Section 109 of the IPC. In the case of Om Prakash v State of Haryana, the Supreme Court held the wife of the accused, Chhoti, liable under Section 109 of IPC for aiding the commission of the rape by asking the victim to go to her house where the two accused subjected her to rape.
“17. We find that in the present case, there is positive evidence adduced by the prosecution that accused Chhoti has aided the commission of offence by asking the victim to go to her house to take “lassi” where accused Om Prakash and Kartar Singh bolted the room and subjected the victim to rape. From the record, it appears that for about an hour, the victim was not allowed to go out from the house where she was subjected to rape. It was the house of accused Chhoti and her husband where the incident is said to have taken place.”
While there is no denying that rape is a gendered crime that affects women in larger numbers, the community that suffers inexplicable harm from being excluded from the definition of rape is the transgender community.
With the NALSA judgement the identity of the TG community was recognised for the first time and it was held that their rights are safeguarded under Article 21 of the Constitution of India. It was also held that ‘person’ under Article 14 of the Constitution is not restricted to only male and female, but hijras and transgender persons who are neither male nor female fall within the ambit of ‘person’ and are entitled to legal protection of laws in all spheres of State activity.
“It was seven or eight years back when I was in Kolkata during Durga Puja. I was with four of my transgender friends and we were standing in the line to attend the ceremony when 7-8 guys approached us and called us out of the line. We went towards them not suspecting what they wanted. They then started assaulting us by touching in different parts of our bodies forcefully. This happened in public, we started screaming but no one came to help us,” says Amrita Sarkar, a transgender activist working for Solidarity and Action against the HIV Infection in India (SAATHI), an NGO working with LGBTQ community, recounting an experience of sexual assault in public.
The NALSA judgement identified the problem of the TG community being subjected to sexual violence. “Sexual assault, including molestation, rape, forced anal and oral sex, gang rape and stripping is being committed with impunity and there are reliable statistics and materials to support such activities.” This judgement also highlighted the judicial role of upholding the rule of law and ensuring access to justice to the marginalised sections of society. This judgement rightly identified that TGs have historically belonged to an underprivileged class which has been a marginalised section of society. It therefore recognised the need for protection of their rights through the application of law.
“129. The rule of law demands protection of individual human rights. Such rights are to be guaranteed to each and every human being. These TGs, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights.”
Despite the NALSA judgement which was passed in 2014, four years later and there is yet to be an effective legislation protecting the TG community from sexual violence. “Sexual violence against the transgender community has not been taken seriously. Take a look at the Transgender Persons (Protection of Rights) bill, 2016, which treats sexual violence against the community as a petty offence. Section 19 prescribes punishment for rape between six months to two years,” says Tripti Tandon, Lawyers Collective. (Read our article on the Transgender Persons Bill here.)
A study conducted in October 2016 by researchers from Stanford University and University of California, Berkeley in collaboration with the Civilian Welfare Foundation, a non-profit organisation in Kolkata, revealed deep rooted transphobia among doctors in India. The exercise involved interviews with 300 doctors in five major Indian cities with the aim of finding the extent of their transphobia, the reasons for it, and its effect on their communication with and treatment of transgender patients.
As reported in the Scroll, a transwoman – a person who is assigned male at birth but identifies as female –who participated in one of these studies said that when she went to a hospital after being gang-raped, the doctor asked her, “How can you be raped?” This indicates the lack of sympathy and understanding of the dire situation of sexual violence that threatens the community.
Justice Verma Committee had heard a number of women’s rights and Lesbian Gay Bisexual Transgender rights (LGBT) activists before framing their nuanced recommendation that the law on sexual assault and rape be gender inclusive as far as the victim/survivor is concerned and gender specific as far as the perpetrator is concerned except for specific offences like custodial rape, where the traditional gendered power dynamics could be overturned. In the spirit of gender-neutral laws, sexual harassment, voyeurism and stalking were added to the Indian Penal Code and certain amendments and deletions were made to IPC, CrPC and Evidence Act. But the ordinance on making all laws gender neutral lasted for 58 days and was repealed and replaced by The Criminal law (Amendment) Act 2013. Therefore, the current provisions stating stalking and sexual harassment became gender-specific, where the man is the sole perpetrator and women are the sole victims.
Following the Criminal amendment Act of 2013, Section 375 of the IPC gave a more nuanced definition of rape and consent. Before the criminal amendment of 2013, rape was defined as non-consensual sexual intercourse, where the understanding of sexual intercourse was limited to the penetration of the male genital organ into the female genital organ. The 2013 amendment expanded the definition of rape beyond peno-vaginal penetration, and elaborated on the understanding of consent. It defined consent as “an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.”
“Why should rape laws which protect women be different from the rape laws that protect trans women? How can one offence be awarded a punishment of 7 years to life while another merely 6 months to 2 years?” questions transgender activist Amrita Sarkar.
Therefore there is a need for amendment of the rape laws to include this marginalised section of society under the ambit of the protection of our rape laws. The crimes included within male same-sex rape also must be included within the ambit of our rape laws, while at the same time deleting section 377 of IPC, so that voluntary and consensual sex between two adults is not a crime. Patriarchal notions of masculinity tend to feminise males who have been raped. Therefore, the stigma attached to male victims prevents them from reporting crimes. While as Protection of Children from Sexual Offences Act (POCSO) contains gender-neutral provisions protecting children of all genders under the age of 18 years of age, there is yet to exist a provision that protects marginalised communities of transgenders, and homosexual males from acts of sexual violence.
Ankita Ramgopal is Research and Advocacy Officer with Lawyers Collective
 (2015) 2 SCC 84
 National Legal Services Authority v Union Of India (2014)5 SCC 438
Ankita Ramgopal is Research and Advocacy Officer with Lawyers Collective