New rape laws leave men and the transgender community vulnerable Proposed legislation creates a dangerous legal gap, trivialises sexual assault
26, Jun 2024 | CJP Team
On June 16, Suraj Revanna, the brother of Prajwal Revanna was arrested by Hassan Police on Saturday night after a JDS party worker filed a complaint alleging that he was sexually assaulted by Suraj at his farmhouse on June 16. The complaint against him was registered under Section 377 (unnatural sex), 342 (wrongful confinement), 506 (criminal intimidation) and 34 (acts committed in furtherance of common intention).
The case was transferred to CID for further investigation with immediate effect and Suraj Revanna is now in CID custody until July 1, 2024.
Now what if, the same incident came out after 15 or 20 days, that is post July 1, 2024? Ideally nothing should be different, and Suraj Revanna should be charged with the same sections.
However on July 1, 2024, is the day when the new criminal acts come into force. The Bharatiya Nyaya Samhita, 2023 (BNS) has replaced the Indian Penal Code, and interestingly enough has scraped out Section 377 completely. The new law only allows for the concept of rape to be limited to a situation where the perpetrator is a man, and the victim is a woman. All other cases where the victim is a non-cis gendered woman, then would find solace in the section prescribed for grievous hurt, which is a bailable offence with the term of imprisonment extendable for up to 7 years.
Rape laws post July 1, 2024
Section 377 of the IPC, which criminalized “unnatural offences,” has been a controversial provision. The Supreme Court in the case of Navtej Singh Johar v. Union of India, read down Section 377 and did not strike it down. It decriminalized consensual sex between adults of the same gender and Section 377 remained in the IPC for addressing non-consensual acts and bestiality. The new BNS legislation, however, has completely omitted this section. Section 63 which deals with rape, defines it way in a way where only women can be the victim and only a man can be a perpetrator. Under this section the term of imprisonment cannot be less than 10 years and can extend up to life imprisonment.
The rape laws in India are not gender neutral and the rape of men and transgender persons will become a non-offense post July 1. Men will be able to find relief in Section 114 and 115 of the BNS that deals with grievous hurt. Under this section the term of imprisonment can extend up to 7 years. The transgender community can find relief in the same sections of the BNS and under Section 18 of the Transgender Persons (Protection of Rights) Act, 2019. Under this section the term of imprisonment shall not be less than 6 months and can extend up to a whopping 2 years. Anyone who rapes an animal, will walk away scot-free!
Article 14- the right to equality
The proposed changes to India’s rape laws, with the complete omission of Section 377 and the limitations of Section 63, represent a blatant disregard for the fundamental right to equality enshrined in Article 14 of the Indian Constitution. This revision falls short on numerous counts, leaving a significant portion of the population vulnerable and perpetuating a dangerous misconception about rape.
Article 14 guarantees equality before the law and prohibits unreasonable discrimination. The current framework, which defines rape solely as an act against a woman by a man, creates an arbitrary classification based solely on gender. In the case of State of West Bengal v. Anwar Ali Sarkar (1952), the Supreme Court of India held that before passing any act or order which differentiates between two or more sets of people, the following conditions must be fulfilled-
- It should be based on an intelligible differentia that makes a distinction between one group of people and another.
- The differentia must have a reasonable connection with the purpose sought by the law. This classification fails the “intelligible differentia” test.
There is no logical reason why the experience and trauma of rape should differ based on the victim’s sex or the perpetrator’s gender. Rape is a horrific violation of bodily autonomy and dignity, regardless of the parties involved. Excluding men and transgender individuals from the definition of rape victims creates an “intelligible arbitrariness” that violates their fundamental right to equality.
Relegating the rape of men and transgender persons to the offense of “grievous hurt” under Section 114 and 115 of the BNS trivializes the gravity of the crime. The maximum sentence under this section (7 years) pales in comparison to the potential life imprisonment for rape under the previous Section 63. This disparity fails to recognize the psychological and physical trauma associated with rape. It sends a message that the violation of a man or transgender person is somehow less severe, perpetuating harmful stereotypes about masculinity and reinforcing the myth that men cannot be victims of sexual assault.
Many countries, including Nepal, South Africa, and New Zealand, have adopted gender-neutral rape laws. These nations recognize that rape is a crime against all individuals and ensure an equal level of protection for everyone, regardless of gender. India needs to follow suit and bring its laws in line with international best practices.
Conclusion
The proposed changes in rape laws are a step backward in the fight against sexual violence. They perpetuate harmful stereotypes, deny justice to a significant portion of the population, and violate the fundamental right to equality. India needs to enact comprehensive gender-neutral rape laws that recognize the lived experiences of all victims. This includes ensuring appropriate punishment for perpetrators, providing support services for survivors, and tackling the social stigma that surrounds sexual assault. Only by acknowledging that rape is rape, irrespective of the victim’s gender, can India create a society where everyone feels safe and protected.
Image courtesy: India Today
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