Make IPC Rape Provisions Gender-Neutral: Petition In Delhi HC, Notice Issued [Read Petition]

The Delhi High Court, on Wednesday, issued notice to the Centre on a Petition challenging the Constitutional validity of Sections 375 and 376 of the Indian Penal Code and demanding gender neutral rape provisions.

The Petition, filed by Mr. Sanjiiv Kkumaar, begins by making a reference to the recent murder of a boy at Ryan International School in Bhondsi, allegedly by a 42-year-old man, following a failed sodomy attempt. It then draws the Court’s attention to other such instances and emphasizes on the fact that rape laws in 63 countries are written in gender-neutral language.

Mr. Kkumaar relies on data and research conducted in several countries and submits, “That, as examples from England, US, Nepal and Australia etc has been put forward in the arguments by various parties in various cases and debates, petitioner would like to add here that Wide Spread Existence of Gender Neutral Rape Laws in Progressive Countries coupled with Female on Male Rape facts, startling statistics and general analysis of the issue shown above confirm that Male Rape is a reality and cannot be denied and male rape is not a figment of imagination.

Male rape is far too prevalent to be termed as an anomaly or a freak incident. By not having gender-neutral rape laws, we are denying a lot more men justice than is commonly thought.”

Further, emphasizing on the reality of men being raped, Mr. Kkumaar blames patriarchy for the silence that is maintained when a man is raped. He avers, “If a male alleges that female raped him, he is not seen as a “Real Man” because the stereotypical patriarchal assumption of “men are superior and stronger to women” comes into the picture. The same “male domination” and the notion of patriarchy is, in fact, the very reason males do not come out of the closet to report rapes. Forman (1982) finds that about 90-95% of men who are raped do not report it.

Therefore, men too like females are afraid of reporting rapes. Their masculinity is doubted upon; he is mocked and harassed by the society because he got “raped by female”. It is seen as his fault and weakness.”

The Petition also places reliance on the recent judgment of the 9-Judge Constitution Bench of the Supreme Court on the right to privacy and submits, “Hon’ble Supreme Court in Right to Privacy ruling has used the word “consent” 38 times. Consent and bodily integrity of each citizen are now fundamental rights and the cornerstone of the Privacy Ruling.

Privacy now being a Fundamental Right has changed the contour and validity of some existing Acts and Cr.P.C/IPC and made them(or some sections of them) Null, Void and Unconstitutional.”

Thereafter, alleging a violation of Articles 14 and 21 of the Constitution of India, Mr. Kkumaar submits, “…in simple layman term, one cannot choose, not to criminalize women convicted of murder just because the perpetrator is female(woman). As IPC 375 and 376 are not gender neutral vis-à-vis perpetrator as well as a victim of crime and judge the criminality based only on gender. Here no one can claim a special privilege (the negative concept of Article 21) that because one is the female perpetrator of the crime, she is immune to criminal action.

Similarly, if the victim is male, he has right of equal protection equal to that of a female in the like circumstances (Consent and Bodily Integrity). IPC 375 and 375 doesn’t pass this test with respect to Article 14 r/w Article 21 of Constitution of India after Right to Privacy ruling.”

Relying on these contentions, the Petition also seeks a direction to the Centre to replace the current rape provisions with gender neutral provisions relating to rape, as contained in the Criminal Law (amendment) Ordinance, 2013. These provisions were in force for a period of 58 days from February 3, 2013 to April 1, 2013, but were then replaced with gender specific provisions after protests from certain quarters of the society.