GENDER NEUTRALITY IN RAPE LAWS: ANALYZING THE MISSED OPPORTUNITY IN BNS AND ITS IMPLICATIONS FOR GENDER JUSTICE.
Thomas Jefferson famously said, “Nothing is so unequal as the equal treatment of unequal people”.
INTRODUCTION
The global challenge of gender inequality and the need for gender-neutral rape laws prompt the imperative question: Can justice authentically prevail when it is tainted by bias? The imperative lies in re-evaluating and reforming existing rape legislation to safeguard all victims, irrespective of gender. Justice must be impartial to gender distinctions. Although women are disproportionately impacted by sexual violence, this reality does not negate the potential victimization of men and transgender individuals. Disregarding this verity amounts to denying their suffering and their entitlement to legal recourse.
LEGAL FRAMEWORK IN INDIA
In India, the current rape laws lack gender neutrality, thereby overlooking male and transgender victims of sexual assault. Section 375 of the Indian Penal Code and The Protection of Children from Sexual Offences (POCSO) Act, 2012, offer legal provisions for rape, with the latter encompassing both genders of children. The inception of "rape" into the IPC dates back to 1860, initially defined in 2004 exclusively as "penile-vaginal" intercourse. Following the Mathura Rape case, "Custodial rape" was incorporated into the definition. Section 375 delineates an offense against bodily integrity, termed as Rape, with section 376 stipulating its penalties. Regrettably, this section is gender-specific, constraining victims to women and perpetrators to men. Consequently, crimes against bodily integrity persist. Indian legislation fails to acknowledge the potential victimization of men, irrespective of the gender of the perpetrator. In essence, under current Indian law, only men can commit the offense of rape, while only women can be deemed victims.
NEED FOR GENDER NETURAL LAWS
In recent years, there has been a pressing call for a gender-inclusive framework in sexual offenses. The Justice Verma committee in 2013 proposed the inclusion of all genders, including transgender individuals, under section 375 of the IPC. Similarly, the 172nd report of the Law Commission emphasized the necessity for gender neutrality in this regard. Legal experts and advocates have underscored the reality that men and transgender individuals can and do fall victim to sexual violence. In 2017, the National Legal Services Authority (NALSA) conducted a national consultation on access to justice for transgender persons, highlighting their heightened vulnerability to sexual violence. Consequently, the current landscape acknowledges that males, transgender individuals, and other non-conforming gender identities can be victims of rape in India. Ensuring equality for men and marginalized communities like transgender individuals necessitates the implementation of gender-neutral rape laws to uphold true gender justice.
ROLE OF BNS, 2023 IN GENDER JUSTICE
The Bharatiya Nyaya Sanhita, 2023 (BNS, 2023) was introduced to enhance India's criminal justice system and provide greater protection for women against sexual offenses, incorporating gender-neutral provisions in rape laws. This legislation received presidential assent on December 25, 2023, and is scheduled to be enforced from July 01, 2024. Under Chapter V, "Offenses against Women and Children," Sections 63 to 99 have been outlined.
Section 63 defines rape as follows:
"A person commits 'rape' if they:
- Penetrate their penis, to any extent, into the vagina, mouth, urethra, or anus of another person, or coerce them to do so with themselves or another individual.
- Insert, to any extent, any object or part of the body other than the penis into the vagina, urethra, or anus of another person, or coerce them to do so with themselves or another individual.
- Manipulate any part of another person's body to cause penetration into their vagina, urethra, anus, or any other part of their body, or coerce them to do so with themselves or another individual.
- Apply their mouth to the vagina, anus, or urethra of another person, or coerce them to do so with themselves or another individual,
under any of the following circumstances:
1. Against the individual's will.
2. Without the individual's consent.
3. With the individual's consent obtained through coercion by threatening death or injury to themselves or someone they care about.
4. With the individual's consent, knowing that the person is not their spouse and that their consent is based on the belief that they are lawfully married to someone else.
5. With the individual's consent obtained while they are unable to comprehend the nature and consequences of their consent due to mental incapacity, intoxication, or the administration of stupefying or harmful substances.
6. With or without the individual's consent, if they are under the age of eighteen.
7. When the individual is unable to communicate consent."
These provisions aim to ensure comprehensive protection against rape and uphold the principles of gender neutrality and consent.
AMENDMENTS-
In accordance with the landmark Supreme Court judgment in Independent Thought v. Union of India and Anr. (2017 SC), Section 63 Exception 2 of the BNS modifies the age threshold from "fifteen years" to "eighteen years."
Under Section 64, the term "military" has been replaced with "army" for clarity.
Section 65 of the BNS now consolidates various aspects previously covered under different subsections. Specifically, Section 65 (1) of the BNS corresponds to Section 376 subsection (3) of the IPC, while Section 65 (2) of the BNS addresses the provisions previously covered under Section 376 AB of the IPC.
Section 69 of the BNS addresses sexual intercourse obtained through deceitful means or false promises of marriage. This provision, previously dealt with under Section 90 of the IPC, now stands as a separate provision in the BNS. The term "deceitful means" encompasses inducements or false promises of employment, promotion, or marriage by concealing one's identity.
Section 70 of the BNS deals with gang rape and amalgamates various aspects previously delineated in separate provisions. Section 70 (1) of the BNS corresponds to Section 376 D of the IPC, while Section 70 (2) encompasses the provisions previously covered under Sections 376 DA and 376 DB of the IPC. Notably, Section 70 (2) of the BNS specifies the punishment for gang rape involving a woman under eighteen years of age, removing the previous differentiation in punishment based on the age of the victim as stipulated in the IPC.
CONCLUSION:
In conclusion, the Bharatiya Nyaya Sanhita, 2023 stands as a pivotal measure in safeguarding the lives of Indian citizens and advancing gender justice while fostering fairness and transparency within the legal system. It is imperative that the law clearly defines rape to encompass all forms of sexual violence against any gender. Furthermore, provisions must ensure that victims of all genders have unfettered access to essential support services such as counselling, medical aid, and legal assistance. Courts must be adept at handling cases involving male and transgender victims with the utmost sensitivity and impartiality. Concurrently, comprehensive sex education programs should be integrated into schools and communities to instil principles of consent, respect, and healthy relationships from an early age.
Beyond legal reforms, concerted efforts are required to address the underlying causes of gender-based violence, including systemic inequalities and entrenched social norms. Initiatives aimed at promoting gender equality across various domains, including education, employment, and political participation, are crucial in this regard. Additionally, robust support systems for survivors, including specialized trauma centres and crisis hotlines, must be established to cater to the diverse needs of affected individuals.
Moreover, media representations and societal attitudes towards gender and sexuality play a significant role in shaping perceptions and behaviours. Therefore, there should be heightened scrutiny and accountability for media portrayals that perpetuate harmful stereotypes or trivialize sexual violence. Instead, media platforms should be utilized to amplify survivor voices, challenge harmful narratives, and promote positive depictions of consent and healthy relationships.
By integrating these measures seamlessly, the Bharatiya Nyaya Sanhita, 2023 can pave the way towards a more inclusive, equitable, and violence-free society for all individuals in India.
