counter-complaints to get them to
withdraw.
The Law Commission, in its 172nd
Report submitted in 2000, recommend-
ed gender-neutral definition of rape by
replacing the term “rape” in the IPC
with the words “sexual assault”. The
centre accepted the proposal to make
definition of rape gender-neutral after
the December 16, 2012, gangrape of
Nirbhaya. The Justice Verma Comm -
ittee, set up after the horrific incident,
recommended use of the word “person”
in place of “woman” to cover all victims
of sexual violence.
T
he then UPA government thus
notified the Criminal Law (Am -
en dment) Ordinance in February
2013 which adopted a gender-neutral
definition of rape. However, following
criticism of the change by a number of
women’s rights activists, the Criminal
Law (Amendment) Act, 2013, passed by
the Lok Sabha on March 19, 2013, and
the Rajya Sabha on March 21, 2013,
reverted to the gender-specific defini-
tion of rape. Those who opposed gen-
der-neutral rape laws questioned their
relevance in the context of an intrinsi-
cally patriarchal and gendered society
where sexual violence evidently acts as a
medium to exercise power over the fem -
ale/non-male body.
Gender Watch,a research periodical
published by the Rajiv Gandhi Institute
of Contemporary Studies, Delhi, pointed
out in its February 2018 edition that
rape is an intrinsically gendered crime
and, contrary to the arguments in PILs
in the Supreme Court and the Delhi
High Court, it needs to be viewed
through a gender lens.
The return to the gender-specific
definition of rape in 2013 met with sig-
nificant criticism from several LGBTQ
activists. It was pointed out that the cur-
rent laws left transgender persons with
no clear remedy in cases of sexual vio-
lence. A 19-year-old transgender person,
for instance, was beaten and gang-raped
by four men in Pune in 2017. The acc -
used in the case were booked under Sec -
tions 377 (unnatural offences), 323 (vol-
untarily causing hurt), 504 (intentional
insult with intent to provoke breach of
peace) and 506 (punishment for crimi-
nal intimidation) of the IPC. The trial
court found all the accused innocent as
Section 377 does not have any mention
of the third gender.
Interestingly, the centre in its affi-
davit in response to Kkumaar’s petition,
pointed to the recourses available in PO -
C SO (Protection of Children from Sex -
ual Offences Act) and Section 377 to
ma le victims of sexual violence. The
Pune inc ident reminds us that POCSO
can offer no protection to an adult male
victim of sexual violence, while Section377 is also found inapplicable to trans-
gender victims of sexual violence.
The Verma Committee recommend-
ed in 2013 that though the perpetrator
of sexual violence should continue to be
identified as a man, the victim be cate-
gorised as gender-neutral to cover sexu-
al violence against men, women and
transgender persons. The Criminal Law
(Amendment) Act, 2013 unfortunately
restored the gender-specific definition of
sexual violence for both the perpetrator
and the victim. Justice Leila Seth, one of
the members of the Verma Committee,
noted that “this was a serious mistake,
and Parliament failed to understand the
injustice done thereby to so many men
and transgender people”. It is this lacu-
na in law which the centre should seek
to fill while responding to pleas for gen-
der-neutral laws against sexual violence.
The Law Commission, in its 172nd
Report, said: “Not only women but
young boys, are being increasingly sub-
jected to forced sexual assaults. Forced
sexual assault causes no less trauma and
psychological damage to a boy than to a
girl subjected to such offence.” While the
Commission’s concerns were justified,
its recommendations to opt for “sexual
assault” for “rape” and to substitute
“person” for either male or female, were
not very convincing to the legislators
and civil society alike.
Another petition filed by the Crim -
inal Justice Society of India before the
Supreme Court last year also met with
no success. The petition stated that not
recognising male and transgender rape
has impacted the ability of victims to
acknowledge their own victimisation.
Even while agreeing with the petitioner,
the Supreme Court put the onus on
Parliament and the centre to enact the
necessary legislation for the purpose.14 July 22, 2019
Lead/ Gender-neutral Laws
Twitter: @indialegalmedia
Website: http://www.indialegallive.com
Contact: [email protected]RIGHTS OVER WRONG
LGBTQ activists protested against the return
to gender-specific definition of rape in 2013Anil Shakya