Analysing Sexual Offences Laws in India: Is it Time to Introduce Sex-Neutral Language?
The recent decision by a single Indian state—Uttar Pradesh—to alter its inheritance laws to recognise the right of ‘third gender’ individuals to inherit agricultural property[1] marks an important step in recognising the rights of transgender, non-binary, and intersex people in India. Under the previous Uttar Pradesh Revenue Code (2006), inheritance laws were expressed in a binary and biologically-determined fashion (i.e. beneficiaries could only be those whose gender identity coincides with their sex determination as specifically male or female at birth).[2] This effectively precluded the inheritance rights of all individuals who did not conform to this rubric—such as hijras and kinnars—who have, since the seminal NALSA[3] judgment, been legally regarded in India as ‘third gender.’[4]
From the outset, it is important to note that the legal term ‘third gender’ covers a broad spectrum of identities, including individuals who identify as hijras, kinnars, and aravani—identities which often do not have a direct equivalent in western notions of sex and gender.
Despite the fact that over half a decade has passed since the NALSA judgment, many laws continue to be expressed in a binary and biologically-determined fashion, to the exclusion of all other identities. The decision of Uttar Pradesh to modify its inheritance legislation has sparked calls for the revision of similar laws in other states[5] and the re-ignition of the debate on the exclusionary nature of many of the laws in India.
This article does not aim to be an exhaustive exploration of these laws, but will instead examine sexual offences legislation in India, focusing on their exclusionary impact. Ultimately, it will be argued that sex-neutral language ought to be introduced into these laws to ensure that all individuals—of all sex and gender identities—are afforded equal legal protection.
Sexual offences laws in India: a brief history
A number of sections of the Indian Penal Code (‘IPC’) define crimes in a sex-specific fashion, such that a perpetrator may only be male as a matter of law. For example, section 375 specifies that a ‘man’ commits rape if he engages in any of the actions listed in subsections (a)-(d) and, by extension, section 376D defines gang-rape in similar sex-specific terms. Consequently, the courts have routinely found both that women cannot be guilty of rape or gang-rape[6] and that a victim of rape must necessarily be female as a matter of law.
The exclusionary nature of the IPC has generated a significant volume of judicial discussion and as early as 1996, in the case of Sudesh Jhaku,[7] judges have commented that the section, as drafted, denies justice to non-female victims of rape. In March 2000, the Law Commission of India published a report in which it recommended that section 375 be replaced with a new, sex-neutral crime of sexual assault.[8] The Law Commission’s recommendations became part of the Criminal Law (Amendment) Bill, 2012 (‘the 2012 Bill’).[9]
However, the 2012 Bill never became law. This was due to the public outrage and mass protests that followed the horrifying gang rape and murder of Jyoti Singh in Delhi in December 2016. The incident rocked the public consciousness in India and led to the execution of four perpetrators.[10] In addition, it triggered the passage in 2013 of the Criminal Law (Amendment) Act (‘the 2013 Act’), which introduced a number of reforms to the IPC—these included an expanded definition of rape to encompass the penetration of any part of a victim’s body with an object.[11]
The 2013 Act also garnered a significant amount of attention as it introduced a number of new offences into the IPC; however, in the author’s opinion it is regrettable that most of these new offences are defined in sex-specific terms. For example, following the 2013 Act, the offences of sexual harassment,[12] assault with intent to disrobe,[13] voyeurism,[14] and stalking[15] are defined solely on the basis of a male perpetrator and a female victim. Consequently, at best the 2013 Act represents a missed opportunity to redraft sexual offences laws in India in a more inclusive fashion. At worst the 2013 Act actively reinforces the exclusionary nature of the IPC by creating additional offences that, by definition, exclude transgender, non-binary, and intersex individuals from their protection.
Barriers to the revision of section 375
A key question that arises from the foregoing discussion relates to why section 375 remains unaltered, particularly in the light of previous recommendations by the Indian Law Commission concerning the introduction of sex-neutral offences. There are multiple possible answers to this question, but the author proposes to focus on three: first, the antiquated nature of the IPC; second, prevailing attitudes among sections of the Indian judiciary; and third, opposition to the introduction of sex-neutral language by certain women’s rights activists.
First, the exclusionary nature of the IPC is often explained by its 19th century colonial roots; however, in the author’s view this explanation is lacking. This is because it fails to account for the ample opportunities that both the courts and legislature have had post-independence to reinterpret or revise the IPC to address concerns relating to the exclusionary nature of sexual offences laws—concerns which they have failed to address. It is important to note that the IPC has been amended dozens of times since its inception, including in 2013.[16]
Second, judges have often expressed a disinclination to reinterpret the provisions of section 375, citing their observation that it has been unambiguously drafted and that, as such, any attempt to change its scope would inevitably lead to confusion. For example, in the Supreme Court case of Sakshi,[17] G P Mathur J reasoned that ‘[a]n exercise to alter the definition of rape, as contained in Section 375 IPC, by a process of judicial interpretation . . . is bound to result in [a] good deal of chaos and confusion . . . .’[18]
However, notwithstanding the reticence of judges to reinterpret the scope of section 375, it is arguable that one of the principal reasons that this section has remained unaltered is that it embodies a deep-rooted view of rape which is prevalent among certain sections of the judiciary and society at large in India—a view that construes rape as inextricably linked to concepts of honour, shame, and the perceived value of women. For instance, V R Krishna Iyer J in the case of Rafiq[19] opined that ‘[w]hen a woman is ravished [i.e. raped], what is inflicted is not merely physical injury but the deep sense of some deathless shame.’ [20] In a similar vein, in the 2015 Supreme Court case of Madanlal,[21] Dipak Misra J observed that rape is a crime ‘against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the “purest treasure” is lost.’[22]
In the author’s view, these statements uncover the tendency to conceive of rape not merely as a crime as a matter of law, but also as a matter of ‘reputation’ for the female victim. It was this line of thinking that led V R Krishna Iyer J to explain in his concluding remarks that counsel for the appellant ‘submitted that a 7-year sentence was too severe. No, because as . . . [I] have stated earlier, rape for a woman is a deathless shame . . . .’[23] Iyer J’s statements were arguably premised on the view that a woman’s ‘value’ is ultimately reducible to her perceived chastity. Hence, on this view, if a woman is raped she loses her ‘purest treasure’ (per Dipak Misra J) and it is this ‘treasure’ that ought to be protected by the law. It is precisely these views—creating a link between rape and the perceived ‘value’ of women—that prevent the inclusive reinterpretation of section 375 as they focus, not on the criminal act of rape, but on the perceived value of an archetypal victim that is female.
Finally, it must be acknowledged that a number of prominent women’s rights groups and activists opposed the introduction of the 2012 Act and the recommendations of the 172nd Indian Law Commission Review, on the basis that the introduction of such language would ‘endanger . . . and deepen . . . women’s vulnerability’[24] in India. While it is important to acknowledge these concerns, in the author’s view it is erroneous to suggest that the introduction of sex-neutral language would impact the position of women in India. Instead, this would correct an historical wrong by expanding the protection currently afforded to women to include transgender, non-binary, and intersex individuals, as well as to male victims of rape.
The Transgender Persons Act 2019: a flawed solution
It may be contended that a solution to the exclusionary nature of section 375 was achieved with the passage in 2019 of the Transgender Persons (Protection of Rights) Act (‘the 2019 Act’). This is because section 18 of this Act creates a specific offence in relation to the sexual abuse of transgender individuals. However, in the author’s view this is, at best, an imperfect solution for a number of reasons. Notably, the 2019 Act does not create a new offence of rape that can be committed against transgender individuals, but only the lesser offence of ‘sexual abuse.’ Furthermore, an individual found guilty of contravening section 18(d) of the 2019 Act is liable to be imprisoned for a term of between six months and two years, whereas an individual found guilty of contravening section 375 of the IPC can be imprisoned for life.[25] This creates a two-tier system, whereby sexual crimes committed against transgender individuals are punishable in a comparatively lighter fashion than those committed against cis-women.
Conclusion
Ultimately, it has been argued that the inclusion of sex-neutral language in section 375 and the wider IPC is a necessary step to give effect to the spirit of the NALSA decision. In the author’s view, the inclusion of sex-neutral language would correct an historical wrong and provide an important avenue for transgender, non-binary, and intersex victims of sexual offences to seek legal redress.
Article tags: | intersectionality | diversity | transgender rights | feminism |
In the author’s view, the inclusion of sex-neutral language in section 375 and the wider IPC would correct an historical wrong and provide an important avenue for transgender, non-binary, and intersex victims of sexual offences to seek legal redress. Image source: Chad Crowe
The 2019 Act creates a two-tier system, whereby sexual crimes committed against transgender individuals are punishable in a comparatively lighter fashion than those committed against cis-women. Image source: Stephan Bachenheimer / World Bank
It is arguable that one of the principal reasons that section 375 has remained unaltered is that it embodies a deep-rooted view of rape which is prevalent among certain sections of the judiciary and society at large in India—a view that construes rape as inextricably linked to concepts of honour, shame, and the perceived value of women. Image source: Paige Michel
At best, the 2013 Act represents a missed opportunity to redraft sexual offences laws in India in a more inclusive fashion. At worst, this Act actively reinforces the exclusionary nature of the IPC by creating additional offences that, by definition, exclude transgender, non-binary, and intersex individuals from their protection. Image source: The Swaddle
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Sources Cited
[1] TNN, ‘Transgenders get right to inherit agricultural land in UP’ (The Times of India, 20 August 2020) <https://timesofindia.indiatimes.com/india/transgenders-get-right-to-inherit-agricultural-land-in-up/articleshow/77644874.cms> accessed 1 October 2020.
[2] ibid.
[3] National Legal Services Authority v Union of India AIR (2014) SC 1863
[4] ibid [116] (K S Radhakrishnan J).
[5] Vineet Upadhyay, ‘Transgender community in Uttarakhand bats for land inheritance rights’ (The New Indian Express, 28 August 2020) <https://www.newindianexpress.com/nation/2020/aug/28/transgender-community-in-uttarakhand-bats-for-land-inheritance-rights-2189216.html> accessed 1 October 2020.
[6] PTI, ‘Woman can’t be prosecuted for gang rape: SC’ (The Times of India, 13 July 2006) <https://timesofindia.indiatimes.com/india/Woman-cant-be-prosecuted-for-gang-rape-SC/articleshow/1748238.cms> accessed 30 September 2020.
[7] Sudesh Jhaku v K C Jhaku (1998) Cri LJ 2428.
[8] Law Commission of India, ‘One Hundred and Seventy Second Report on Review of Rape Laws’ (Government of India, 2000) [7.2].
[9] S. 5, Criminal Law (Amendment) Bill, 2012.
[10] ‘Nirbhaya case: Four Indian men executed for 2012 Delhi bus rape and murder’ (BBC, 20 March 2020) <https://www.bbc.co.uk/news/world-asia-india-51969961> accessed 30 September 2020.
[11] S. 9, Criminal Law (Amendment) Act, 2013.
[12] S. 354A, The Indian Penal Code, 1860.
[13] ibid s. 354B.
[14] ibid s. 354C
[15] ibid s. 354D.
[16] Criminal Law (Amendment) Act, 2013.
[17] Sakshi v Union of India AIR (2004) SC 3566.
[18] Sakshi (n 17) [22] (G P Mathur J).
[19] Rafiq v State of Uttar Pradesh (1980) 4 SCC 262.
[20] ibid.
[21] State of Madhya Pradesh v Madanlal AIR (2015) SC 3003 (Criminal Appeal No. 231 of 2015)
[22] Madanlal (n 21) [16] (Dipak Misra J).
[23] Rafiq (n 19).
[24] TNN, ‘Activists join chorus against gender neutral rape laws’ (The Times of India, 7 March 2013) <https://timesofindia.indiatimes.com/india/Activists-join-chorus-against-gender-neutral-rape-laws/articleshow/18840879.cms> accessed 1 October 2020.
[25] S. 18(d), Transgender Persons (Protection of Rights) Act, 2019.