Article 14 of Indian Constitution states “right to equality” which clearly signifies that every person is equal before law and no discrimination can be made. This also signifies that no person can be denied justice on one or other basis. The laws which are enacted must be constituted in such a manner that all the citizens get equal protection of rights. The increasing rate of crimes in India demand for change in some of the major legislations due to some loopholes which exist and eventually justice is not served.
NEED FOR GENDER NEUTRAL LAW
According to Dariwala, of the 71% of men surveyed who said they were abused, 84.9% said they had not told anyone about the abuse. The primary reasons for this were shame (55.6%), followed by confusion (50.9%), fear (43.5%) and guilt (28.7%).[i]
A 22-year-old man in the western city of Pune, who said he was repeatedly raped by a man for two years starting when he was five, reported his ordeal to his parents only a year ago fearing he would be judged.[ii]
A 4-year-old boy was referred to the collaborative child response unit by another hospital with complaints of fever, excoriation in the anal region. Informant was the father. He told that he was sexually abused in the school toilet by two older boys, one of them beat him, holding him down, and the other sodomized him. If he was a 4-year-old girl, raped by two older boys, school would be afraid of a scandal, because he is a boy no one cares or accepts the crime” (father of the victim).[iii]
Definition of rape is not gender neutral
In the case of rape of minors, consistent with the POCSO Act, the victim may either be male or female (and the offender could even be of either gender). However, in cases of adults under the IPC, rape is as an offence as long as the offender is male and therefore the victim is female. The Law Commission of India (2000) and therefore the Justice Verma Committee (2013) had recommended that this definition of rape should be made gender neutral and will apply equally to both male and female victims. The Ordinance does not address this issue.
Widening difference in punishment between rape of women and boys
The POCSO Act states that the upper punishment laid out in it or within the IPC will apply for rape of minors. The POCSO Act has an equivalent penalty for rape when the victim may be a boy or a woman. However, the IPC provisions which apply only to rape of female victims carry a better punishment. The Ordinance further widens this difference. Table 2 summarises the differences in punishment for rape of minor boys and girls
AMENDMENTS IN THE SECTIONS RELATED TO RAPE
Substitution of new Section for Section 375, IPC
The section shall be substituted as “Any person is said to commit rape if that person”. The section originally states “a man is said to commit rape if”. This is a clear bias on the basis of gender. The present substitution provides for the word “person” which states that not only man but any person irrespective of gender if commits rape will be held liable and will be punished in the same manner.
Insertion of new Section 375A
The insertion of this new section states the punishment of sexual assault. The section also states the word “any person”. The section also aims at providing for a gender-neutral law for the crime of sexual assault. Subsection (a) states “touching the genital intentionally” the word genital according to the section includes both penis and vagina. The section makes the sexual assault a crime which can be committed on both men and women.
Substitution of new section for Section 376
The substitution of the section states the punishment for rape committed by any person. The section aims at removing the word “woman” and making kit gender neutral. The substituted section does not contain the word woman and only provides for the rigorous punishment for whosoever commits it.
Amendment of Section 376A and 376D
In this section the word woman used everywhere should be substituted with the word “any person”.
The amendment of the provisions of rape mainly aim at making the crime of rape gender neutral. The substitution of word “woman” with “any person” makes the crime gender neutral as the word any person makes the crime gender neutral. This amendment is a need of the country as the crime of rape is considered as gender biased and there are no remedies provided for men. Hence, the Criminal Amendment Act,2019 as a whole aims at making rape a rigorous and gender neutral crime.
Edited by Pushpamrita Roy
Approved & Published – Sakshi Raje