Addressing Bias In India's Rape Laws - Toward Inclusive Justice For Marginalized Victims
Author: LawSphereX
Category: Criminal Law
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ADDRESSING BIAS IN INDIA'S RAPE LAWS: TOWARD
INCLUSIVE JUSTICE FOR MARGINALIZED VICTIMS
Gauri Nandakumar Varma, O.P. Jindal Global Law School
OVERVIEW
Rape is an abominable crime that goes beyond individual pain, leaving deep scars on victims, families, and communities. It is not just a violation of physical autonomy but a devastating breach of trust, dignity, and fundamental human rights. In India, however, rape laws currently apply exclusively to women, disregarding other genders. Despite the Constitution's promise of equality under Article 14, can this legal discrimination be seen as justified? This article seeks to break the silence surrounding male and transgender rape and to examine how the legal system has unintentionally reinforced the stereotype that men and other genders are inherently perpetrators rather than victims. Through this analysis, we aim to address the gap left unfilled by existing legislation.
INTRODUCTION
“Rape culture. The totality of all the big and little things we do, say and believe that ultimately lead to the conclusion that it's okay to rape. ”1 - Sohaila Abdulali Rape is commonly described as unwanted, or non-consensual sex. The Bharatiya Nyaya Sanhita describes rape as any form of un-consented sexual act done to a woman by a man, against her will. In the case of State of Punjab v Ramdev Singh2, it was observed that rape was violative of right to life and therefore, sexual crimes against women should be dealt sternly and severely. Rape is unquestionably a gendered crime. As per recent statistics of 2022, more than 31,000 rape cases of women have been filed3. This show how in patriarchal societies, rape is not an unusual or isolated incident, but rather a reflection of the broader system of gender inequality.
It embodies and strengthens the existing cultural norms around gender and sexuality, which often support male dominance and female subordination. Instead of opposing these
1 Abdulali S, What We Talk about When We Talk about Rape (HighBridge 2018)
2 State of Punjab v Ramdev Singh, AIR 2004 SC 1290
3 Rathore M, ‘India: Rape Cases 2022’ (Statista, 14 February 2024)
accessed 27 October 2024
norms, rape acts as an extreme form of enforcing them, demonstrating the power imbalance between men and women that already exists in the culture. However, it is undeniable that individuals of all genders may be vulnerable to sexual offenses and violations. In the Indian legal framework, rape laws are predominantly gender-specific, framing women as victims and men as perpetrators. This perspective is problematic, as it neglects the protections needed for men, transgender individuals, and non-binary persons. The call for gender-neutral rape laws dates to 1996 in the case of Sudesh Jhaku v. K. C. Jhaku4, where Justice Jaspal Singh of the Delhi High Court asserted that men who experience sexual assault deserve the same legal protections as female victims, and women who perpetrate such acts should face equivalent accountability. Following the Sakshi v.
Union of India 5 case, where gender-neutral laws were advocated, the 172nd Report of the Law Commission of India6 recommended redefining "rape" as a gender-neutral offense of sexual assault. The Nirbhaya rape7 case spurred the formation of the Justice Verma Committee8, which advised gender neutrality in the definition of a rape victim but not of the perpetrator. The Committee proposed that perpetrators be believed to be male, with exceptions for scenarios such as custodial rape or situations with significant power disparities, in which women in positions of authority could be charged of sexual assault. However, with the enactment of the Criminal Law (Amendment) Act of 20139, the legal framework remains gender-specific, protecting women while perpetuating the notion of men as perpetrators.
One reason for maintaining gender-specific rape laws is the concern over marginalizing women by allowing counter-suits against every complaint filed by them, potentially undermining the intent of the law. This focus, however, leaves men and individuals of other genders with minimal protection regarding their rights to autonomy and bodily integrity. Denying such protections constitutes a violation of Article 14, which guarantees equality before the law and prohibits unreasonable discrimination. In State of West Bengal v. Anwar Ali Sarkar10, the Supreme Court of India established that any law differentiating between groups must meet two
4 Sudesh Jhaku v. KC Jhaku [1996] 62 DLT 563
5 Sakshi v Union of India [1999] 6 SCC 591
6 ‘Law Commission of India, 172nd Report: Review of Rape Laws (New Delhi: Ministry of Law and Justice, Government of India, 2000)
7 Mukesh v. State (NCT of Delhi) (2018) 8 SCC 149
8 The Report of the Committee on Amendments to Criminal Law, 2013
9 The Criminal Law (Amendment) Act, No. 13 of 2013
10 State Of West Bengal v. Anwar All Sarkar 1952 AIR 75
criteria: it should be based on a clear, intelligible distinction, and this distinction must be reasonably related to the law's objective. This raises questions about the validity of the distinctions made in this context, as the trauma associated with rape is not inherently different across genders. Furthermore, patriarchal constructs impose expectations of stereotypical masculinity on men11, indicating that women are not the sole victims of patriarchy.
VISUALIZING PREDATORS AS VICTIMS
When removed from the patriarchal standards imposed by society, men can be seen as vulnerable to victimization. Men who experience abuse from other men or from individuals of other genders often choose not to disclose or report these incidents, as doing so is perceived to "damage" their masculinity and may lead to judgment from their male peers. A notable example is the jury trial in the Menendez murders, which recently regained public attention. In this case, the two brothers, who had been sexually assaulted and raped by their father as children, were convicted of murder. The men on the jury reportedly struggled to accept the notion that young boys could be raped. This case illustrates a prevalent mindset among men and the broader resistance to acknowledging male victimization.
In 2017, Insia Dariwala, conducted a survey, wherein it was found that among 160 male survivors of sexual assault, 84. 9% has not disclosed it to anyone, succumbing to the gender roles and societal pressures. 12 A case was reported where a 17-year-old boy was gang raped in Ghaziabad, while returning
home after leaving his motorcycle at the repair shop.13 A case was filed under POCSO, as he was a minor. However, had this heinous act been perpetrated against an 18-year-old, he would have been bereft of legal protection. Similarly, a recent report emerged from Uttar Pradesh detailing the tragic suicide of a 23-year-old man who was the victim of gang rape14. The decolonization of the Indian Penal Code (IPC) into the Bharatiya Nyaya Sanhita (BNS) has unfortunately resulted in the decriminalization of unnatural offenses, leaving such victims vulnerable and without recourse to justice. It is crucial to recognize that the relative infrequency
11 Sakshi Jain, ‘Need for Gender Neutral Rape Laws’ [2019]
12 ‘Male Child Abuse Victims Live with Traumatic Experience Due to Shame’ (Hindustan Times, 1 May 2018) accessed 27 October 2024 13 ‘5 Youths Sodomise Teenager in Ghaziabad, Insert Iron Rod in His Rectum’ (India Today, 16 June 2018) accessed 27 October 2024 14 ‘Youth Commits Suicide after Being Sexually Assaulted by 4 Men in UP’s Gorakhpur’ (Hindustan Times, 17 June 2024) accessed 27 October 2024
of reported sexual offenses against men and non-binary individuals does not negate their occurrence. Rather, it underscores the urgent need for a legal system that provides equitable justice to all victims of sexual violence, regardless of gender identity. I.
MALE VICTIMS OF PRISON RAPES IN INDIA
Prison rape, though legally prohibited, remains distressingly prevalent in Indian prisons, with severe consequences for inmates' mental and physical well-being. Male inmates often subject others to sexual assault as a means of exerting dominance and to feminize their victim. 15 This violence serves as a method of territorial assertion and is sometimes motivated by restricted access to female partners. Despite the persistence of such practices, many incarcerated men do not view these acts as reflective of homosexual behavior. 16 The term "Fresh Fish" has become a colloquial label for young, attractive newcomers, who are frequently targeted for victimization. 17 Prisoners often grow out their beards and choose a shabbier appearance to make themselves appear less appealing.
18 Among prison authorities, there exists a pervasive belief that such assaults are an inevitable aspect of prison life, disregarding the prisoners’ fundamental right to human dignity, as established by the Mulla Committee. In Madhav Hayawadanrao Hoskot v. State of Maharashtra19, the court underscored the state's obligation to shield inmates from treatment that exceeds lawful punishment, holding prison officials accountable for any such failures. The landmark ruling in D. K. Basu v. State of West Bengal20 reinforced these protections by issuing guidelines to address the alarming rise in custodial deaths and torture. Notably, in 2015, while revisiting the D. K. Basu21 guidelines, the Supreme Court directed states to install security cameras in prisons and police stations to deter human rights violations within these facilities. 22 15 Levan, K. M.
(2011) ‘Gangs and Violence in Prisons’, In Chambliss, William J. (Eds) Corrections Key Issues in Crime and punishment, Thousand Oaks, California: Sage Publications
16 Ibid [p.110]
17 Raj Shekhar / TNN / Updated: Jun 11 2015, ‘Rampant Sexual Abuse Is a Real Nightmare in Tihar: Delhi News - Times of India’ (The Times of India) accessed 27 October 2024
18 ibid
19 M.H. Wadanrao Hoskot v. State of Maharashtra, (1979) 1 S.C.R. 192.
20 DK Basu v. State of West Bengal, AIR 1997 SC 610.
21 ibid
22 Neha Pateli and Charvi Agarwal, ‘Prison Rapes and Violence: A Comparative Analysis between USA and India’ [2021]
Despite these constitutional protections and judicial precedents, the conditions endured by male prisoners remain largely unaltered. There is an urgent need not only for inclusive reform addressing the experiences of male and gender minority inmates but also for specific legislation on prison rape. The United States’ Prison Rape Elimination Act of 2003 provides a framework for assessing and mitigating the impact of prison rape, offering resources, guidelines, and funding for protection against such abuses.23 Similar legislation in India would be instrumental in safeguarding male prisoners against sexual violence. II.
OFFENSES AGAINST TRANSPEOPLE
In NALSA v. Union of India24, the Indian Supreme Court recognized the transgender community as the “third gender,” thereby extending constitutional protections under fundamental rights. However, serious questions remain about whether transgender individuals receive true constitutional equality as citizens. References to gender-diverse figures in Indian epics like the Mahabharata and Ramayana demonstrate the longstanding presence of Hijras in Indian culture, yet modern criminal law continues to lack adequate inclusion for them25. The transgender community’s exclusion from the definition of sexual offenses has led to severe injustices. Many transgender individuals, particularly trans women, face sexual violence even when seeking assistance from police authorities. In one case, a transgender girl from Punjab, estranged from her family, relocated to Varanasi to rebuild her life.
Not only was she repeatedly assaulted by her landlord, but when she courageously approached the police, the official recording her statement allegedly raped and mocked her. 26 LGBTQIA+ rights activist Indrajeet Ghorpade has noted that such conditions perpetuate the community’s suffering; approaching law enforcement remains fraught with danger, as crimes against transgender individuals are not adequately classified as rape or sexual offenses. 27 23 ‘Prison Rape Elimination Act’ (PREA) accessed 27 October 2024
24 National Legal Services Authority (Nalsa) v Union of India, AIR 2014 SC 1863
25 Editor_4 and Ridhi, ‘Legal Safeguards for Transgenders from Sexual Offences: The Need of the Hour’ (SCC Times, 1 October 2021) accessed 27 October 2024 26 ‘Raped, Mocked by Police for Seeking Justice: India’s Rape Laws Do Not Cover Transwomen’ (Article 14) accessed 27 October 2024
27 ibid
Another stark example is the case of Kanmani, a trans woman wrongfully jailed on theft charges, who was then sexually assaulted by a prison warden interested in her gender identity. 28 If the victim had been cisgender, the warden would have faced a minimum tenyear sentence, yet due to Kanmani’s transgender status, the warden received only a suspension. 29 After the NALSA30 judgment and other legal developments about the trans community, the transgender persons act 2019 was passed. The Act identifies these offenses against transgender persons: (i) forced or bonded labor (excluding mandatory public service), (ii) denial of access to public places, (iii) eviction from home or community, and (iv) physical, sexual, verbal, emotional, or economic abuse. Penalties range from six months to two years of imprisonment, along with a fine.
31 While the Act offered some reassurance to trans activists and the transgender community by affirming their legal recognition, India still has considerable strides to make in fostering inclusivity and protecting transgender individuals from sexual offenses—a matter that warrants further discussion.
SUGGESTIONS
As analysed, sexual offenses against male and trans-people are very prominent and is not being reported due to the societal stereotypes and lack of inclusive legal regimes. The gender neutrality of these sexual offenses in the BNS would not be sufficient, the society needs to evolve beyond their patriarchal thinking, and their parenting principle of the male being a strong body who is not allowed to reveal their pain or do anything that challenges their
28 ‘The Many Rapes of India’s Transgender Citizens’ (Outlook India, 16 August 2024)
accessed 27 October
29 ibid
30 ibid
31 ibid
masculinity. The statutory provision for rape in the BNS that defines rape can be refined in the following way: Section 63: A person commits rape if they engage in a sexual act with another individual under any of the following circumstances:
1. Against the Consent of the Victim: Engaging in sexual acts without the clear and
informed consent of the other person.
2. Coercion or Deception in Obtaining Consent: Threatening damage to the individual
or someone close to them or misrepresenting them on key facts about the conduct.
3. Abuse of Authority or Position: Using power, influence, or a position of trust to force
permission from someone who would not otherwise agree.
4. Victim's impairment to consent: Sexual actions with someone who cannot provide
consent owing to mental impairment, intoxication, or unconsciousness, even if they appear to agree.
5. Age of Consent: Engaging in sexual acts with an individual under the age of 18 years,
irrespective of their consent. Explanation:
1. Protection against False Countersuits: Counterclaims of rape must be supported by
significant evidence to prevent misuse and protect genuine victims of all genders. Although it may have its shortcomings, this approach will retain its universal applicability to both genders. To mitigate the risk of fraudulent counterclaims, a framework for evaluating evidence presented by the defence should be established. Only counterclaims supported by concrete, verifiable evidence would be deemed valid. Furthermore, it is essential to analyse the power dynamics between the parties involved, considering factors such as professional influence, the history of their relationship, and any previous instances of control or coercion that could suggest an imbalance in credibility. Additionally, the social and educational
backgrounds of the individuals should be considered. Prison rape reforms are urgently needed, to address the gap between legislative enactments and actual enforcement. In Shri Rama Murthy v. State of Karnataka32, the court emphasized the necessity for standardized prison regulations and revised the prison manual's exemplary framework, prompting the establishment of a committee advocating for an international prison manual. Although the Supreme Court has repeatedly affirmed prisoner rights in a series of landmark judgments, these rights remain inaccessible to many inmates. Managing overcrowding in facilities such as Tihar is essential to maintaining humane conditions. Authorities must ensure a safe and dignified environment by implementing strict disciplinary measures for violent behaviour while also providing therapy and counselling to support inmates’ well-being.
CONCLUSION
Over the years, many countries have accepted that Rape can occur to any gender and altered their statutory provisions in this regard. India must enact rules under this matter, that are unbiased and non-violative of article 14 of the Indian constitution. Some arguments against gender neutral rape laws are that they would negatively impact women, although this could be true, there is not much evidence on it. 33 Even if this was sufficient proved, it is upon the legislation to fill this gap and treat all members of the society as equal. We have identified that male and Transgenders are also victims of this heinous crime, and the perpetrators of these victims are walking free. This defeats the entire purpose of the statute. Gender-neutral sex offense laws are the need of an hour.
Such respectable laws should be encouraged and put forward by the organs of government to combat or eliminate an unavoidable discrimination based on gender.
32 Shri Rama Murthy v. Karnataka, A.I.R. 1997 S.C. 1739
33 Abhinandan Ashok Neeralgia, ‘Rape as a Gendered Crime’ [2024]