Written by Manan Daga
Research Associate at Law & Order (month of Oct-Nov 2020)
Third Year, BA. LLB. West Bengal National University of Juridical Sciences, Kolkata (WBNUJS)
Source: The Leaflet
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
Sexual offences, including rape, are the offences revolving around informed consent. A lack of informed consent of either a female or a male could ideally lead to an offence of rape in its strict interpretation. However, the laws on rape allowed only females to approach for justice when their informed consent was not present, and males could not do the same. Hence, the Criminal Law (Amendment) Bill, 2019 was introduced in Rajya Sabha by Senior Advocate KTS Tulsi through a Private Member’s Bill.
The neutrality of laws on rape should be strengthened after the case of Navtej Johar v. Union of India which read down Section 377 of the Indian Penal Code, 1860 and decriminalised gay or transgender consensual sex.
The key takeaway from this case was “gay consensual sex”. What about gay non-consensual sex? Will it be charged under Section 377 of IPC or under Section 375/376 of IPC?
Ideally, it should be charged under Section 375/376 of IPC since the offence is regarding consent. But the current wording and structure of Section 375 and 376 do not allow gay males and transgender people to access justice through these provisions. Therefore, this Bill is a gateway towards breaking the shackles of stereotypes of gender and sex. This Bill leads to a path of sympathising with males who faced sexual assault despite not being gay. This Bill empathises with feminism since “rape” would no longer have a gender affiliation to it, and this creates equality among all genders. Therefore, this Bill is one of the first concrete steps on the path towards the gender-neutral laws for sexual offences.
In this article, firstly, the Criminal Law (Amendment) Bill of 2019 is analysed along with the implications of the changes it has put forward. Thereafter, the impact of this Bill in ensuring gender-neutral laws on rape is addressed. It is supplemented with the pros and cons that will come if this Bill is passed. Lastly, this article is concluded with a holistic interpretation of this Bill, which is strengthening the laws on rape and sexual offences through gender-neutrality.
The Criminal Law (Amendment) Bill, 2019
The Bill proposes to amend the Indian Penal Code, 1860 (‘IPC’), the Code of Criminal Procedure, 1973 (‘CrPC’) and the Indian Evidence Act, 1872 (‘IEA’). It proposes the amendment of Sections 8, 10, 354, 354A, 354B, 354C, 354D, 375, 376, 376A, 376C and 376D of the IPC, and insertion of Sections 8A and 375A in the IPC. It also proposes amendment of Sections 154, 161, 164 and First Schedule of the CrPC.
Lastly, it proposes the amendment of Sections 53A, 114A and 146 of the Indian Evidence Act, 1872.
The most significant amendment is of Section 375 of IPC. The Bill proposes to replace pronouns referring to “men” and “women” with “any person” or “other person”. Along with this, the Bill proposes to replace the terms “penis” and “vagina” with the term “genitals”. Secondly, the proposed Section 375A is crucial because it defines sexual assault, genitals and consent. This insertion of Section 375A, which defines consent along with sexual assault and genitals underline the inherent importance of consent in sexual assault offences.
Sections 376, 376A, 376C and 376D, are proposed to be amended by replacing the word “women” with “any person” or “a person”. Moreover, the Bill proposes to replace the words “a man” and “a woman” under Sections 354A, 354B, 354C and 354D with “any person”. The essence of this proposal is to underline that only males are not the perpetrators under these provisions, and only females are not the victims of the same. Lastly, Sections 8 and 10 are proposed to include “transgender” within these provisions, and Section 8A is proposed to be inserted to define modesty. These proposed provisions are the main highlights of the Bill. The proposals under CrPC and IEA are for procedural safeguard.
This Bill aims to sympathise that the homosexuals and transgender people can also be victims of sexual offences like rape. It also seeks to advance that a male may not be the perpetrator in each and every such crime. For instance, in cases of stalking or voyeurism, a female may be the perpetrator and may stalk a male, or a female may capture an image of a man engaging in a private act. Such a male may not get justice under the current framework of Section 354C and 354D. Therefore, this Bill is making the society liberal by considering that males or transgender people may be victims of such crimes too. This liberal thinking is crucial for the advancement of society as a whole.
Critical Analysis of the Bill
This Bill has been criticised by many for having some basic flaws in it. Firstly, it has been criticised for lack of a proper definition of a transgender person. Secondly, it has been criticised for not clarifying the meaning and scope of “unwelcome actionable threat” under Section 375A. Thirdly, the role and stereotype created by gender in the Indian society are long-standing, and the society may not be ready for a gender-neutral law on rape. The government has a belief of keeping the current Section 375 intact because they believe that usually men are the perpetrators and mostly women are the victims. These are some of the impediments which seem invalid and worth pondering upon.
However, there are some criticisms which have some flaws in them. Some rely on the case of Tarkeshwar Sahu to argue that the essence of a woman’s modesty is her sex, so any interference on the integrity of a person because of their sex may affect their modesty. In contrast, the definition of modesty proposed in the Bill is very subjective based on commonly held beliefs of people. This criticism is not considering that this Bill intends to empower transgender people and men, along with women who face sexual offences. However, if the standard of Tarkeshwar Sahu is followed, then any interference of one’s integrity because of their sex in cases of homosexual’s or transgender’s cases may not always lead to an objective assessment. Hence, this discretion of subjectivity creates a little indefinite power, but it may be required considering that the males and transgender people are also included within the scope of these offences.
Further, some argue that this Bill is a criticism of feminism. However, this depends on which kind of feminism is being referred to while advancing the aforesaid criticism. In the case of radical feminism or cultural feminism, this Bill may appear to go against their ideologies. However, when it is looked at from a liberal feminism perspective, which focuses on gender equality, then this Bill is not a criticism of feminism. Instead, this Bill is facilitating the achievement of gender equality by developing gender-neutral laws on rape. Hence, this Bill is advancing liberal feminism. Thus, the objection that this Bill is a criticism to feminism is not entirely correct since there are multiple kinds of feminism, and it depends on which school of feminism one is considering while stating the same.
The step towards gender-neutral laws on sexual offences is a need of the hour. If a homosexual rapes a man, then the lack of consent, feeling of disgust and outraging of modesty is similar to the one which is present if a man rapes a woman.
Making these laws gender-neutral is not harmful to anyone. These laws need a strict implementation for the protection of everyone from these sexual offences. The objective of this Bill starts a new chapter for the Indian criminal system, and this chapter should be warmly welcomed because it is the change towards the betterment of the society.
This Bill should be a welcoming change to the criminal law system in India. Gender-neutral laws on rape and other sexual offences are evidence of the liberal society India is becoming. Rape has been long seen as an offence where only the females can be the victim, and if such an offence is committed on a man or a transgender person, then the path to justice becomes difficult. This Bill is a step towards breaking the stereotypes of the past and ensuring justice for ‘anyone’ who has been a victim of rape or other sexual offences. This Bill should not be misconstrued as undermining the experiences of women, but it should be seen as a progressive development towards a safer future for all genders. Since sexual intercourse between homosexuals is legal, any acts of rape committed by one homosexual on any man, or any female homosexual on any woman should fall under the laws of rape. This Bill is ensuring the same by making a first step towards the gender-neutral laws on sexual offences. This first step is the vital push for providing access to justice for everyone.
 Ukkash F, Criminal Law Amendment Bill, 2019 - A step to bring gender neutrality in sexual offences, PROBONO INDIA (Aug. 30, 2020), http://probono-india.in/blog-detail.php?id=161#:~:text=The%20Criminal%20Law%20Amendment%20Bill,of%20rape%20and%20sexual%20assault  Navtej Singh Johar v. Union of India, (2016) 7 SCC 485.  Id.  Harsh Gupta, Criminal Law Amendment Bill, 2019: A critical analysis, THE LEAFLET (Jul. 30, 2019), https://www.theleaflet.in/criminal-law-amendment-bill-2019-a-critical-analysis/#  Id.  Pallavi Pundir, Indian Rape Laws Cannot Be Gender-Neutral, Says Central Government, VICE, https://www.vice.com/en/article/mb8dey/rape-laws-in-india-cannot-be-gender-neutral-says-ministry-of-home-affairs  Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560.  Id.  Supra 4.  Anmol Mathur, The Criminal Law (Amendment) Bill, 2019 and Gender-Neutral Sexual Offences in India, THE CRIMINAL LAW BLOG (Mar. 27, 2020), https://criminallawstudiesnluj.wordpress.com/2020/03/27/the-criminal-law-amendment-bill-2019-and-gender-neutral-sexual-offences-in-india/
Navtej Singh Johar v. Union of India, (2016) 7 SCC 485
Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560
Anmol Mathur, The Criminal Law (Amendment) Bill, 2019 and Gender-Neutral Sexual Offences in India, THE CRIMINAL LAW BLOG (Mar. 27, 2020), https://criminallawstudiesnluj.wordpress.com/2020/03/27/the-criminal-law-amendment-bill-2019-and-gender-neutral-sexual-offences-in-india/
Harsh Gupta, Criminal Law Amendment Bill, 2019: A critical analysis, THE LEAFLET (Jul. 30, 2019), https://www.theleaflet.in/criminal-law-amendment-bill-2019-a-critical-analysis/#
Pallavi Pundir, Indian Rape Laws Cannot Be Gender-Neutral, Says Central Government, VICE, https://www.vice.com/en/article/mb8dey/rape-laws-in-india-cannot-be-gender-neutral-says-ministry-of-home-affairs
Ukkash F, Criminal Law Amendment Bill, 2019 - A step to bring gender neutrality in sexual offences, PROBONO INDIA (Aug. 30, 2020), http://probono-india.in/blog-detail.phpid=161#:~:text=The%20Criminal%20Law%20Amendment%20Bill,of%20rape%20and%20sexual%20assault