SC dismisses plea to make sexual assault gender neutral: Move reflects court's reluctance to view rape cases as victim-centric

On 2 February, the Supreme Court of India dismissed a public interest litigation (PIL) that prayed to make the nature of laws that pertain to rape, sexual harassment, stalking, voyeurism, and outraging the modesty etc gender-neutral. While doing so, the apex court termed the PIL an “imaginative petition”. The Supreme Court, earlier, was asked to examine if laws criminalising adultery can be made gender-neutral. Rishi Malhotra, a Supreme Court lawyer, filed a similar petition to examine certain provisions of the Indian Penal Code for laws against rape, sexual harassment and the like. The petition sought to challenge the constitutional validity of Sections 354 (assault or criminal force with intent to outrage her modesty), 354A (sexual harassment), 354B (assault or use of criminal force to woman with intent to disrobe), 354C (voyeurism), 354 (stalking) and 375 (rape) on the grounds that it was in violation of Articles 14 (right to equality) and 15 (discrimination on grounds of sex) of the Constitution. [caption id=“attachment_4334995” align=“alignleft” width=“380”] File image of Supreme Court. Reuters[/caption] Live Law reported that the apex court Bench, led by Chief Justice Dipak Misra and consisting of Justices AM Khanwilkarand and DY Chandrachud, stated that these provisions are affirmative “for the protection of women and in their favour”. Malhotra’s plea argued that that the words “any man” in the Indian Penal Code should be declared ultra vires to the Constitution and replaced by “any person”. He stated in his PIL that: “(c)rime has no gender and neither should our laws. Women commit a crime for the same reasons that men do. The law does not and should not distinguish between criminals and every person who has committed an offence is liable to punishment under the Code.” The judges stated that it was not the Judiciary’s prerogative to change the Indian Penal Code, and the job of amending legislation was of the Parliament: “We cannot direct the Parliament to collect data regarding it”. Moreover, Chief Justice Misra agreed that both men and women can be perpetrators of gender-based crimes, but it was not in the hands of the Judiciary to put in legal policies and mechanisms to deal with such issues. “We are not saying a woman cannot rape a man but these come under a different offence under IPC. Even if we feel that the legislation should have been gender-neutral, what we feel is that the legislature would have acted as per what was the urgent requirement,” Chief Justice Misra said. The chief justice also added that legislation is the panacea to such issues and only the Parliament can take action. “Legislations come as a response to social and collective cry. These sections are victim-oriented and the Parliament has acknowledged a woman as the victim,” he added. Moreover, Justice Chandrachud also emphasised that the provisions in the Indian Penal Code are solely for women, and the law-making hand of the government recognises the need for protecting women: “Parliament has recognised a degree of harm against women and framed this law. Similarly, in sexual harassment instances, Parliament felt it is the woman who is the victim and accordingly has recommended the law to deal with it.”

A very glaring issue in the petition, as well as the dismissal thereof by the nation’s highest court, is that rape, as a crime, is viewed from the perspective of the perpetrator.

Though Chief Justice Misra and Justice Chandrachud talk about how anti-rape, and other “affirmative” laws in the Indian Penal Code are for the safety and welfare of women, they state that they “are not saying a woman cannot rape a man…”. The petitioner, too, examines the offences under the IPC and hopes to demonstrate that the “sections would always be committed by an accused who happens to be a ‘man’ and the victim would always be a ‘woman’”. Both the petitioner as well as the Judiciary are reluctant to consider rape from the worldview of the victim or the survivor. The Justice Verma Committee report mandates that sexual assault laws and policies, and by extension, their interpretation be victim-centric. However, Malhotra’s petition, as well as the Bench’s dismissal, completely ignore the tenets of this report. Moreover, the Judiciary’s understanding of rape seems to be based on honour; it views rape as a crime of passion solely against women. It does not acknowledge that “ rape is about power and control and not uncontrollable lust”. It is also reluctant to look at power relations between men and women when it comes to crimes such as rape, sexual assault, sexual harassment, outraging of modesty, stalking and voyeurism. Even in the rape case of Jyothi Singh in 2012, the Supreme Court, in its judgment, used the word lust about 11 times, and made references to phrases such as “bestial proclivity”, “wanton lust” and “unchained carnal desire”. A perspective such as this also holds back the Judiciary from having a sound victim-centric point of view while examining this petition.

What the Bench also did not realise is that in denying to make a comment on the gender-neutrality of the provisions of the Indian Penal Code, it defied the principles laid out in the NALSA judgment, that identified the legal right of transgender people to self-identify as the third gender.

A gender-neutral law on sexually violent crimes (rape, sexual harassment, sexual assault, especially) would take into account that needs of the trans community. Further reform and changes in the law are necessary so that there is a legislative recognition of the trans community’s lived experiences of sexual violence. However, the Judiciary, at this point, did not think it significant that the rights and privileges that cisgender people have should be extended to the third gender as well. An activist, Amba, who works on issues related to persons with disability, states that all citizens have the right to be free from sexual assault and that this should be a “legislative necessity”. She affirms that when the law recognises people across the gender spectrum, then the law must also provide for prevention and protection against sexual assault for all people falling in such spectrum. The Supreme Court could have struck gold when this petition came up and advocated for these issues around the anti-rape laws. Instead, it chose to pass the buck to the Parliament, remained reluctant to view the Indian Penal Code as anything but “protective”, and shrugged this petition off as “imaginative”.