This article is written by Ms. Kishita Gupta from Unitedworld School of Law, Karnavati University, Gandhinagar. This article analyzes the Criminal Law Amendment Bill 2019.
Table of Contents
Introduction
The Criminal Law Amendment Bill, 2019 was introduced as a private member’s Bill in the Rajya Sabha. The bill’s principal goal is to make criminal offences in India gender-neutral. The bill respects and empathizes with transgender and male rape and sexual assault victims. As noted in the statement of the objective of the Bill, more than 63 countries have already implemented gender-neutrality about sexual offences by modifying their criminal laws to align with their commitments to the United Nations and humanity. It is past time for India to acknowledge the sexual assaults perpetrated against both men and transgender people. The Bill and the necessity for gender neutrality in sexual offences are the focus of this article. Senior Advocate of the Supreme Court, Mr. KTS Tulsi introduced the private member bill in the Rajya Sabha. The primary goal of the measure is to make rape a gender-neutral crime. The current legislation exclusively acknowledges women as rape victims.
Objective of the Bill
The Indian Constitution gives everyone the right to life and personal liberty, as well as equal protection under the law, forbids discrimination based on gender, and makes particular provisions for the advancement of socially backward citizens. Despite a pressing need for such protection, transgender people, including gays, bisexuals, and men, are excluded from the perspective of victims of sexual exploitation, assault, or harassment, and regularly avoided from providing protection, among other things, under our country’s penal laws.
In Navjet Singh Johar v. Union of India (2018), the Supreme Court of India decriminalized consensual sex between people of the same gender. The Court interpreted Section 377 of the Indian Penal Code to exclude consenting sexual activity between people of the same gender or transgender people. It’s worth noting that under Section 375, which defines rape, only women are victims, not men. Section 377 provided amnesty to men and transsexual people, which has already been repealed. It is critical to make changes to the rape provisions to make them gender-neutral.
The fundamental rationale for making rape a gender-neutral crime is for the following reasons:
- Recognizing that homosexual people can also be rape victims.
- Raped individuals from the transgender community are also possible victims.
- It is critical to remember that rape can be committed by anyone, not just a “man”.
The bill’s goal is to acknowledge and empathize with both transgender and male rape and sexual assault victims. It is critical to recognize that just because a problem isn’t being discussed in the mainstream doesn’t mean it doesn’t exist. Furthermore, gender-neutrality does not intend to diminish women’s experiences, but rather to give safety to victims of similar violence and suffering.
The bill duly recognized the case of Criminal Justice Society of India v. Union of India & Ors (2018), where the Hon’ble Supreme Court, in an order dated November 12, 2018, recognized merit in the petitioner’s plea for gender-neutral rape laws and requested that the Parliament consider it.
It also acknowledges the Universal Declaration of Human Rights which was approved by the United Nations General Assembly in 1948 to give effect to the UN’s commitment to preserving all people’s human rights to equality and freedom from discrimination. It is important to note that India is a signatory to the said declaration.
Major changes brought in by the Bill
Key highlights of 2018 Act
The Amendment Act of 2018 changes the Indian Penal Code (IPC) of 1860, the POCSO Act of 2012, the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1908. The POCSO Act stipulates that rape of minors will be punished according to the higher of the two punishments: the POCSO Act and the IPC
|
Age of woman 
|
Offence |
Punishment under IPC, 1860 |
Criminal Law (Amendment) Bill, 2018 |
|
Below 12 years |
Rape |
|
|
|
Gang Rape |
|
|
|
|
Below 16 years |
Rape |
|
|
|
Gang Rape |
|
|
|
|
16 years and above |
Rape |
|
|
Sources: Indian Penal Code, 1860; The Criminal Law (Amendment) Act, 2018; PRS
- The investigation into the rape of a child must be finished within three months, according to the Code of Criminal Procedure of 1973. For all rape cases, the Ordinance decreases the time limit to two months.
- In situations of rape of minor females under the age of 16, the Ordinance prohibits anticipatory bail. Furthermore, any appeal against a rape sentence must be resolved within six months.
However, not much focus was given by this Act to bringing gender-neutral laws in India and therefore the 2019 Bill was introduced as a private member Bill in the parliament.
Key highlights of the 2019 Bill
- The bill aims to amend Section 2 of the IPC to include a definition of “modesty.” It aims to define it as a personality trait relating to the universally held conviction in morality, decency, and integrity of speech and behaviour in any man, woman, or transgender person. In any case, there is a gap because the IPC considers definitions under Section 6 rather than Section 2. The jurisdictions are discussed in Section 2.
- The bill proposes a change to IPC Sections 354, 354A, 354B, 354C & 354D. Outraging women’s modesty, sexual harassment, intent to disrobe, voyeurism, and stalking are all covered under these regulations. These laws will be changed to take into account the sex of the perpetrator and the victims of rape. The word “man” or “any man who” is proposed to be replaced by “whoever” while “a woman” by any person”.
- Section 375 of the IPC has been amended. The Bill intends to replace pronouns referring to “men” and “women” with phrases like “any person” or “other person,” thereby making rape a gender-neutral crime.
- The bill also wants to combine the phrases “penis” and “vagina” with the phrase “genital,” which is defined as the penis and vagina in Explanation 1. Rape is defined as the victimization of both women and men as perpetrators.
- The Bill proposes the addition of a new Section 375A, which defines sexual assault as the intentional touching of the genitals, anus, or breasts, or forcing another person to touch such parts of the other person without consent, or the use of unwelcome words or gestures that create an “unwelcome threat of actionable nature,” punishable by up to three years in prison and/or a fine. The law proposes that men be identified as rape victims and that purposeful contact and unwelcomed statements be considered a sexual assault against men.
- Apart from special sub-sections dealing with the rape of women and children in detention, this bill intends to make the offences mentioned under Sections 376A, 376B, 376C, and 376D of the IPC gender-neutral as well by replacing the word woman with “any person”.
The gender-neutral perspective of the Bill of 2019
Gender prejudices that have persisted for a long time are paralleled in Indian society. The same is mirrored in the Ministry of Home Affairs‘ statement, which completely dismissed the necessity for gender-neutral rape legislation, citing the need to protect women from the onslaught of sexual violence, and thus aiming to maintain gender-specific rape and sexual offence laws.
It’s worth noting that The Law Commission of India’s 172nd Report, which came out after the sequel to Sakshi v. Union of India (2004), recommended enacting gender-neutral sexual offence laws and broadening the scope of Section 375 of the Indian Penal Code. The controversy over the Nirbhaya Case, which added a new comprehensive set of rules for women’s protection, drowned out such a recommendation. In 2013, the Justice Verma Committee, mindful of the complexities of Indian criminal law and its evolving nature, reiterated the necessity for gender-neutral legislation covering sexual offences.
Furthermore, it is critical to recognize the grey area under the Indian Penal Code when it comes to crimes of sexual violence against men and transgender people. Other genders beyond the age of 18 have no legal recourse because the POCSO only applies to acts of sexual violence against children under the age of 18. There’s no denying that women in India are sexually assaulted regularly, and all of the legislation enacted to help women is well within the bounds of equality and the required differentiation.
Nonetheless, these laws were intended to catalyze a more equal society, and as a result of this progressive evolution of law, the court has recognized the complexity of gender and has included them in the socio-legal framework. Gender-specific legislation reinforces gender stereotypes and encourages regressive views.
The Bill is not intended to diminish the experiences of women who have been raped or discriminated against. However, as culture evolves, we must learn to empathize with all people, including male and transgender rape victims. We must question social conceptions that promote macho, limit men and transgender people to stereotypes, and drive them to hide their sentiments by breaking our silence on the problem of male and transgender rape. This bill aims to update legislation relating to sexual exploitation, harassment, and assault to reflect evolving social morals.
Following UN resolutions and the 1948 Universal Declaration of Human Rights, a constant stream of countries has altered their laws to make sexual offences gender-neutral following the 1948 Universal Declaration of Human Rights. The Bill states that more than 63 countries have already implemented gender neutrality concerning sexual offences by modifying their criminal laws to align with their commitments to the United Nations and humanity. It must not be forgotten that discrimination is the polar opposite of equality and that equality in its purest form would promote each person’s dignity. Victims’ ability to acknowledge their victimization has been harmed by the lack of recognition of male rape.
Critical analysis of the Bill
The Bill avoids potential complications with the term “transgender” by not defining it at all, especially in light of potential conflicts with the recently passed Transgender Persons (Protection of Rights) Act, 2019. Instead, a new category named “other” has been added, which includes transgender people. This way, regardless of the limited definition of transgender that may be imposed in other legislations, anyone who does not identify with one of the binary can still have recourse under the modified IPC. The Bill has given due consideration to the court’s ruling in the NALSA judgment where transgender was recognized as the third gender in India.
While it is commendable that the charge of sexual assault has been included, there are some issues with the phrasing used in the new proposed Section 375A.
- The rule is ambiguous about what constitutes an “unwelcome actionable threat.” Unfortunately, ambiguous terminology has been employed to determine whether or not an offence has been committed because a person’s opinion of what constitutes an “actionable threat” can be widely variable.
- Second, it adopts the definition of ‘consent’ from Section 375 under Explanation 2, which also defines consent to include any type of nonverbal communication, and indicates a willingness to participate in the specified conduct. It has not, however, incorporated the proviso from Section 375, which states explicitly that mere non-resistance to penetration does not constitute consent. In today’s world, there appears to be no need to intentionally leave a gap in the legislation. As a result, a corollary caveat must be added here, stating that non-resistance to contact does not constitute permission.
- Explanation 3 of the definition of “touches” specifies that the term refers to sexual touching without the victim’s agreement and in the absence of a reasonable assumption that the victim has consented. Under the new provision, the notion of consent is an empty definition and the phrase “reasonable belief that” acts as an umbrella that may be used to excuse any sort of assault by claiming it as a defence. Alternatively, the Bill may have simply added a similar proviso to Explanation 2 and left Explanation 3 out altogether.
Conclusion
India’s criminal laws have been altered numerous times over the years to match the needs of the period. Following the Nirbhaya Case, reforms to the law relating to sexual offences against women have made a significant contribution to women’s protection. It recognized a variety of behaviours that were previously not considered crimes, allowing every victim to seek justice. In light of this, the Criminal Law (Amendment) Bill, 2019, intends to achieve progress when it advocates for a gender-neutral component that punishes any form of sexual assault. It should be emphasized that Indian society has advanced significantly in the twenty-first century.
It not only acknowledged the existence of the third gender but also recognized them as members of Indian society. After such a long struggle just to be acknowledged, the Indian justice system owes it to them to protect their rights as well. Making laws gender-neutral will only assist more victims to seek help and justice, and will have no impact on one gender’s experiences.
References
- https://criminallawstudiesnluj.wordpress.com/2020/03/27/the-criminal-law-amendment-bill-2019-and-gender-neutral-sexual-offences-in-india/#_edn5
- https://www.theleaflet.in/criminal-law-amendment-bill-2019-a-critical-analysis/
- http://probono-india.in/blog-detail.php?id=161
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