SC dismisses plea for making rape law gender-neutral, says law is open for change by Parliament

New Delhi: The Supreme Court on Friday dismissed a plea for declaring the offences of rape, sexual assault, outraging of modesty, voyeurism and stalking in the Indian Penal Code as gender-neutral, saying the law was open for change by Parliament. The plea by a lawyer said the crime of rape should be gender neutral, making a woman also punishable for the offence. Rejecting the plea, a bench of Chief Justice Dipak Misra and justices AM Khanwilkar and DY Chandrachud said that it is an “imaginative situation” and Parliament can deal with it as per social needs. It also said that law is open to change by Parliament and it cannot interfere with it. [caption id=“attachment_4329037” align=“alignleft” width=“380”]  File image of Supreme Court. Reuters[/caption] Advocate Rishi Malhotra, who appeared as petitioner-in-person, said that law cannot be discriminatory against a man and that only he can be punished for the offences of rape and sexual assault. “Crime has no gender and neither the law should be gender-specific. The words ‘any man’ used in the IPC should be removed. The law does not distinguish between criminals and every person, who has committed an offence, is liable for punishment irrespective of being a man or woman,” he said. During the proceedings, the court observed, “You are saying a woman can also stalk a man. Have you ever seen a woman filing a complaint saying another woman raped her or stalked her? This is an imaginative situation. The law is open for change by Parliament as per social needs.” It said, “We are not saying a woman cannot rape a man but for these offences, there are other provisions under the IPC”. Malhotra said that the words “any man” used in the law should be replaced with the word “person” to make it gender-neutral to allow a woman also to be punished under it. To this, the court said that these provisions of the law are “affirmative provisions to protect women” such as the Protection of Children from Sexual Offences Act, which is gender-neutral. “These sections protect women and stand on a different pedestal,” it said, adding they are “victim-oriented” and Parliament has “acknowledged a woman as the victim of the offence”. Malhotra said that “a man does not have any forum to go to if he is stalked or raped” and termed the sections 354 and 375 of the IPC as “archaic”. To this, the bench observed that these provisions cannot be called archaic especially in today’s scenario. Last month, Malhotra had filed the petition seeking to declare the word ‘any man’ used in the provisions for such offences under the IPC, as ultra vires of the Constitution. He had said that the reading of the sections concerned categorically demonstrates that all offences under the related provisions will always be committed by an accused who happens to be a ‘man’ and the victim would always be a ‘woman’. The lawyer had referred to the words ‘any man’ used in the offences under sections 354, 354A, 354B, 354C, 354D and 375 of the IPC and said the expression was violative of Articles 14 and 15 of the Constitution. The plea had claimed that section 354 of the IPC, which deals with assault of or criminal force against a woman with the intent to outrage her modesty, and its allied provisions did not stipulate any law to protect the modesty of a man. “There are cases where women bully men and go unprosecuted because the law in our country does not protect men from such crimes,” Malhotra had contended. Section 354A of the IPC deals with the offence of sexual harassment and its punishment while section 354B is defined as the assault or use of criminal force against a woman with the intent to disrobe. Section 354C of the code deals with the offence of voyeurism whereas Section 354D lists out the punishment for stalking. The offence of rape is dealt with in section 375 of the code. All these offences carry punishment ranging from one year to life term.