Parliament recently introduced three bills to overhaul criminal laws with the aim of providing 'justice'. The bills are the Bharatiya Nyaya Sanhita (BNS) Bill, 2023, Bharatiya Nagarik Suraksha Sanhita, 2023, and Bharatiya Sakshya Bill, 2023, which seek to replace the Indian Penal Code (IPC), 1860, the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872, respectively. The government has said the introduction of the new criminal laws is to ‘strengthen law and order’ while making ‘existing laws relevant to the contemporary situation’. But these progressive bills have overlooked one of the most contemporaneous changes expected of them, which is making sexual offences, especially rape, gender-neutral.
The new bills have again abandoned male victims of sexual offences without any protection. Though the ‘Statement of Objects and Reasons’ of BNS claims to make offences against women and children ‘gender neutral’, no such changes have been made in the sections of the respective bill. The sections relating to sexual offences are the same as the previous laws, which use gendered connotations such as “woman” as victim and “man” as perpetrator. Considering it is the first draft of the bill, making sexual offences gender-neutral is an opportunity to make a historic development towards gender equality.
For the first time, a gender-neutral definition of rape was proposed in 2012 by the Justice Verma Committee, which recognized the “possibility of sexual assault on men, as well as homosexual, transgender and transsexual rape” suggesting requisite modifications in the definition of rape in the Criminal Law Amendment Act, 2012, which was not included later. Similar recommendations have been made by various high courts to achieve the ends of justice. Addressing the same need, the Criminal Law (Amendment) Bill, 2019 was introduced in the Rajya Sabha with the aim of achieving gender neutrality in sexual crimes. However, the bill failed at its initial stage.
There are several reasons why this is the perfect time to make sexual offences gender-neutral. The Supreme Court in the Navtej Singh Johar vs Union of India case, while decriminalizing consensual sex between two adults under Section 377 of IPC, also opened the door to decriminalization of non-consensual sexual acts between two adults (homosexual ones), as such acts do not fit in the traditional definition of rape.
To transgender people, protection from non-consensual sexual acts was again given by the Transgender Persons (Protection of Rights) Act, 2019, which prescribes punishment but with lesser sentences, downplaying the graveness of crimes committed against transgender people. Transgender Persons (Protection of Rights) Act, 2019 was enacted with an objective -- welfare of transgender people but it is inherently discriminatory towards them. The Transgender Persons (Protection of Rights) Act, 2019 does not segregate different crimes of sexual nature into different categories, rather it provides a general term ‘sexual abuse’ which encompasses all crimes of sexual nature. The use of the wider term ‘sexual abuse’ puts all types of sexual crimes on equal footing such as gang rape to comparatively petty crimes like outraging modesty. Thus, it undermines the graveness of different crimes and its effect on the victim’s physical and mental well-being.
The quantum of punishment is also considered to be discriminatory. The punishment prescribed under the Transgender Persons (Protection of Rights) Act, 2019 for sexual abuse (including rape) committed against a transgender person is six months, which may extend to two years with a fine, whereas in the IPC, the punishment for rape committed against a woman is ten years which may extend to life imprisonment and fine. This difference in punishment is in violation of basic constitutional principles and the fundamental right of equality, as it treats the bodily integrity of women on a higher pedestal than that of transgender people. Thus, incorporating gender neutral laws in new criminal law bills is a way to close this gap of gender inequality in punishing offences of similar nature committed against people of a different gender.
Another reason for considering the inclusion of gender-neutral laws is the judicial progression towards the recognition of LBTQIA+ community rights. In the last decade, significant developments have taken place, starting from the recognition of the third gender in the National Legal Services Authority v. Union of India case in 2014 to the same-sex marriage case, which is currently ongoing.
It is important to note that this positive move can only be taken by legislation as the Supreme Court has already refused to take such a step. In Criminal Justice Society of India vs Union of India &Ors., a plea to make the rape law gender-neutral was filed. The court accepted that the plea has merit but refused to interfere as it is the legislature's domain to make such changes.
Lastly, making a gender-neutral definition of sexual offences will certainly inspire gender sensitization in society. It is generally claimed that the graveness of crimes of sexual nature committed against males is undermined due to social stigma attached which sometimes results in less reporting and treatment of such cases as trivial matters. Therefore, making gender-neutral laws will also lead to normalization of males being victims of sexual crimes.
For penalizing any act, the focus should be on two elements of crimes, i.e., the mens rea (mental element) and actus reus (physical element) rather than the societal stereotype that has been attached to binary genders. In case of sexual offence, mens rea is the lack of consent and actus reus is physical touch or penetration (for rape), therefore the crux of sexual offence is lack of consent of the victim and physical touch by the accused, irrespective of the gender of the victim and accused. For making new laws, inspiration should be taken from the Protection of Children from Sexual Offences Act, 2012, which has received applause for its gender-neutral protection.
(Khagesh Meena is a student at the National Law University, Jodhpur)