A two-judge bench of the Supreme Court comprising CJI Ranjan Gogoi and Justice S K Kaul on November 12, Monday, refused to hear the plea seeking to strike down Section 375 of the Indian Penal Code as violative of Articles 14, 15 and 21 of the Constitution. The Petitioner claimed that the criminal law should recognise that both men and women can be rape victims as well as perpetrators. However, the Court refused to entertain the petition stating that the petition is subject matter of legislature’s domain.
Plea seeking rape law as gender neutral- Supreme Court refuses to entertain the petition at this stage. CJI Ranjan Gogoi says the issue raised in the petition is subject matter of legislature’s domain. Prayers made in the petition can be read below 👇 pic.twitter.com/dcyNh11gta
— The Leaflet (@TheLeaflet_in) November 12, 2018
The Petitioner through a Public Interest Litigation (PIL) had stated that the Fundamental Rights guarantee equality in protection and safeguarding measures, and ensures no discrimination on the basis of sex, life with human dignity, to equality, bodily integrity and privacy.
The Law Commission of India vide the 172nd Law Commission Report March 25, 2000 recommended that the rape laws be made gender-neutral by substituting the definition of “rape” with that of “sexual harassment”. Following the recommendation, the Protection of Children from Sexual Offences Act, 2012 was enacted, whereby both boys and girls below the age of 18 were given equal protection against sexual offences.
The Criminal Law (Amendment) Bill, 2012 proposed to replace the term “rape” with “sexual assault” and defined “victim” as “any person” making it gender neutral. The Justice Verma Committee, constituted post Nirbhaya rape of December 16, 2012, comprising (Retired) Justice J S Verma, (Retired) Justice Leila Seth and Senior Advocate Gopal Subramanium published the report on January 23, 2013 wherein it was observed that the Bill required the following changes:
Firstly, under Section 375, the definition of “rape” was widened with respect to the victim making it gender-neutral, whereas, the definition of a perpetrator was limited to a man. Secondly, under Section 354, the ambit of sexual assault was to be broadened by providing for a gender-neutral definition with respect to both victim and perpetrator.
Pursuant to this, the Criminal Law (Amendment) Ordinance, 2013 was published with several changes to the IPC, CrPC and the Indian Evidence Act making them broader and gender-neutral. However, the gender-neutral rape and sexual assault laws lasted only for 58 days. The Ordinance was repealed and replaced by the Criminal Law (Amendment) Act, 2013. The definition of “rape” under the Amendment Act viewed only females as victims and males as perpetrators.
63 countries in the world, including United Kingdom, United States of America, Republic of Ireland, etc. have gender-neutral rape laws.
In the NALSA case, the Supreme Court recognised transgender as the “third gender”. Further, in the Navtej Singh Johar case, the Supreme Court read down Section 377 and decriminalised consensual homosexual acts. In this case, the Court observed that any sexual acts performed between parties, regardless of their gender or sex so long as they are performed with informed consent and willingness does not amount to a penal offence under Sections 375 or 377.
Delhi-based Centre for Civil Society found that about 18% of men surveyed reported being coerced or forced to have sex. Of them, 16% claimed a female perpetrator and 2% claimed a male perpetrator.
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