SECTION 375 OF IPC: A GENDER BIASED LAW
Author: Adeeb Kafeel M, IV year of B.Com.,LL.B.(Hons.) from Government Law College Ernakulam, Kerala
“In 2030 we want to be able to talk about a world that has achieved gender equality” - Phumzile Mlambo-Ngcuka (Executive Director of UN Women)
Sexual crimes against men are a mum topic in India, nobody wants to talk about or debate on the crimes. When someone says about gender inequality it is presumed that it is talking about a crime against women. Why is it presumed so? There occur several sexual crimes against men in India annually but exiguous cases are only reported, why is it so? Does Indian law cover sexual crimes against men?
It is visible that in every possible platform people are talking about Equality. Every press, magazine, Art had recognised Equality and fought for acquiring the same. Recently the social media platforms were flooded by the word Equality. India which has following the male-centred patriarchal way of living for decades resulted in innumerable atrocities and crimes against women, later on, the middle of 19th century feminist movements began and raised issues faced by the women and demanded equality. In aftereffect to these movements, several amendments were demanded in favour of women which will help to treat women as equal as men in every respectful sector. The legislation which was in favour of women was created to protect women. The situation was horrible at that time, women were treated like objects by men. They were treated as sexual objects and in the belief that they are only born to serve men and their only duty is to give birth to children, serve the Husband and do household chores. These laws which were drafted to protect women later turned a notion that certain crimes can only be committed by a certain gender. This notion depicts gender inequality in Indian legislation.
Section 2 of the Indian penal code states that every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India. The word ‘HE’ mentioned in section 2 is the beginning of gender inequality in the Indian penal code which finally gives a general idea that all crimes are male generated. The gender inequality in Indian penal code is not only giving a wrong idea in general but also provides a shield to the offence perpetrated by women.
"Crime has no gender and neither should our laws. Women commit the 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," said by Adv Rishi Malhotra in the PIL demanding crimes such as rape, sexual harassment, outraging modesty, stalking, and voyeurism to be made gender-neutral.[i]
Section 375 of Indian Penal Code, 1860 states that
A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the…..
As stated above, the definition begins with A ‘man’ is said to commit rape, so where is a relief for a male victim if he has undergone sexual harassment? From the very beginning itself, it is known that the law is aiming at only one gender to be accused and on the other hand only one gender to be recognized as a victim. The word ‘Man’ used in the definition of sec 375 of IPC discriminates based on gender which is clearly in violation of article 14 and article 15 of the Indian constitution. According to sec 375 of IPC, the accuse must be a male and the victim who suffered from rape must be a female, the section only covers this crime in this manner. This section does not cover men as victims of rape. The anti-sodomy law of India i.e. Section 377 of IPC which has recently decriminalised by the Honourable Supreme court, was the only resort for male sex victims. However even concerning section 377 if a male victim was attacked by a male attacker, it was not considered as rape and penile intercourse were only served by the law under section 377 that means penetration must be proven, non-penile sexual abuses were not served by the law. There was not any difference between consensual and non-consensual sex between male adults as per the law. Also, if a woman is a perpetrator, then the victim is left with no choice for seeking justice.
Other aspects regarding sec 375 which highlight the gender inequality in the law are as follows
1. As per section 376B, 376 C and 376 D of IPC public servants or higher-ups who seduce a woman taking advantage of their position and have sex with her are liable to imprisonment. There is no such penalty for women if they are trying for sexual favours from men. Men are not protected against false and frivolous claims made by women with vindictive intentions.
2. A man having sexual intercourse without the will of a woman: There is no procedure to prove the will of a woman here. A woman could have consensual sex earlier and still claim rape with a revengeful attitude later.
3. A man cannot break up with a woman with whom he had sex after promising to marry her if he does so then the consent given by the women will be considered by the court as given under a misconception of fact and the man will be prosecuted under section 375 on the other hand if the same act was done by a woman then there is no particular section covers the wrongful act and male victims are left with no choice to seek justice
Need for Gender Equality
In India, Due to the patriarchal ruling for decades resulted in Men to be considered as himself supreme in and he is supposed to show masculine characteristics. Because of The fear of getting taunted, mocked and insulted by the coworkers, Indian men who were sexually abused are forced to keep mum and thereby upholding his pride and privilege as male. Many of the people might wonder if this could happen to a man in India but the sad truth is ‘it can’. A man being sexually harassed by a woman is considered so unlikely by the Indian people mindset, they think that it will not happen in India and believes sexual crimes against men as a myth. There are only a few cases that have been filed and reported on sexual harassment on men in India. With the growing education and growing technology with the global access to information, people are now coming out of their comfort zone and coming to perceive that talking about their experiences is not only going to uncover the tragedy but also is going to set them free physically, emotionally, and mentally. Normally victims to this crime and sexual harassment never report or file cases because of the fear of the stigma that gets formed in the society.
In a recent study it is found that, out of 222 Indian men being surveyed, 16.1% had been coerced into having sex. Despite male rape not being researched as widely as female rape, there are several statistics to suggest that men are raped and the prevalence of men rape is wider than is generally presumed.[ii] Plead by Adv Rishi Malhotra on the PIL filed before the honourable Supreme Court. As to this contention the bench headed by Chief Justice of India (CJI) Dipak Misra and also comprising justices A M Khanwilkar and D Y Chandrachudsaid “It is up to the Parliament. If they feel that this issue requires urgent attention, they must do it. We cannot direct the Parliament to collect data of such offences and amend the IPC. We cannot amend the IPC” the bench said.[iii] In addition to this Justice D Y Chandrachud said, “Maybe the legislature will now realise the need to make rape law gender-neutral and may perhaps then decide as per the urgent requirement then”.[iv]
According to a2010 Economic Times-Synovate survey, it was found 19% of the 527 men surveyed in several metros of the country claimed they had faced sexual harassment. According to the survey, 51% of the 527 men surveyed in several metros of the country claimed that they had faced sexual harassment at work. There was a similar survey conducted by a company called Viacom 18 in 2013 in which it was found that almost 43 percent of male corporate professionals were victims of sexual harassment by their colleagues.[v]
The National Crime Record Bureau (NCRB) under the home ministry tabulates crime against men under various categories of kidnapping and abduction for a variety of motives including illicit intercourse, prostitution and marriage. According to the NCRB 2012 data, 175 men have been kidnapped and abducted for illicit intercourse since 2009. Men too are vulnerable is evident from another disturbing statistic. The NCRB report also shows that since 2009, 995 men were either kidnapped or abducted for forceful marriage.NCRB data further shows that 115 men were kidnapped for prostitution. Most of the kidnappings and abductions of men to get sexual favour have been reported within 18 to 30 years and 30 to 50 years age group.[vi]
Towards Gender Neutrality
Under the statistics reports it is evident that Indian men suffer from sexual harassment and sexual crimes, for curbing this and serving justice to the victims the law must recognise these crimes. To recognise these crimes then the law must be made gender-neutral. The justice Vermacommittee Report, 2013 recommendation must be re-examined by the authorities were the recommendations on making crimes like rape and sexual assault as gender-neutral. The women in India are indeed facing sexual atrocities and sexual crimes a hundred times more than the men in India, but it is not a ground for not giving sufficient recognition to other genders. Justice must be served to all citizens regardless of their gender by the law if it is not so then it is a pure violation of article 14 and article 15 of the Indian constitution. If we admired to serve justice to all, people to have faith in the law, uphold dignity and equality, we must supersede humanity over our fallacious prejudices. For that, the only solution left with ourselves is to make the law gender-neutral.
“Justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.” – Theodore Roosevelt