Criminal Law Amendment Bill, 2019 - A step to bring gender neutrality in sexual offences
Criminal Law Amendment Bill, 2019 - A step to bring gender neutrality in sexual offences
- Ukkash F
INTRODUCTION
The Criminal Law Amendment Bill, 2019 was introduced in the Rajya Sabha through a Private members bill. The main object of the bill is to bring gender neutrality in offences in India. The bill empathizes and recognizes transgender and male victims of rape and sexual assault. More than 63 countries have already given effect to gender neutrality concerning sexual offences by amending their penal Laws to bring them in conformity with their commitment to the United Nations and mankind. It is high time India recognizes the sexual offences happening to male as well as transgenders. This article revolves around the Bill and the need for gender neutrality in sexual offences.
PRIVATE MEMBER’S BILL
A private member\'s bill is the bill that is introduced in the parliament by a legislator who is not acting on behalf of the executive branch. To date, the parliament has passed only 14 private members bill and Rajya Sabha has passed the Rights of Transgender Persons Bill, 2014 on April 24, 2015, which was introduced in the lower house, Lok Sabha on 26 February 2016. But it has not yet become an Act.
According to PRS Legislative Research (PRS), 372 PMBs were introduced in the 15th Lok Sabha (2009-2014). Only 11 out of them were discussed. The Private Members\' bill is often dismissed by the Parliament since they do not want to make this a regular practice. If such a bill is seen getting support in Parliament, the government requests the MP to withdraw it and promises to introduce it as a Government Bill instead.
CRIMINAL LAW AMENDMENT BILL, 2019
The private member bill was introduced in Rajya Sabha by KTS Tulsi. He is a Senior Advocate at the Supreme Court of India. The main objective of the bill is to make the offence of rape, gender-neutral. The present law in existence only recognizes women as a victim of rape.
In the case, Navjet Singh Johar v. Union Of India the Court decriminalizes consensual sex between the same genders. The Court read down Section 377 of the Indian penal code to not include consensual, sexual intercourse between individuals of the same sex or transgender. It is pertinent to note that under Section 375 which defines rape only victimizes women and not other genders. Men and transgenders had immunity under Section 377 which is now decriminalized. It is quintessential to bring amendments to the provisions regarding rape to make it gender-neutral.
GENDER NEUTRAL VICTIMIZATION OF RAPE
The main reason for making the offence of rape gender-neutral is due to the following reasons,
1.Recognizing that individuals who are homosexual can also be victims of rape.
2.Individuals belonging to the transgender community can also be victims of rape.
3.It is very pertinent to recognize that not only a “man” can be the perpetrator of rape.
In this modernized generation, these archaic laws should be taken into consideration. Not only men are the perpetrators of rape but also women, transgender, and other genders. The law commission of India in its 172nd report also discusses the sexual offences to be gender-neutral. Not only women but young boys and girls are being increasingly subjected to forced sexual assaults. Forced sexual assault causes trauma and psychological stress to boys as well. Boys and girls both are being subjected to oral sexual intercourse too. According to some social activists, States like goa and other tourist places use young boys and girls for the edification of the foreign tourists.
Hon’ble Supreme Court in the case of Criminal Justice Society of India v. Union of India & Ors., dated 12th November 2018 found merit in the plea of the Petitioner praying for gender-neutral rape laws and desired that the Parliament may consider the same. Also, keeping in mind the dynamics of Indian Criminal Law and its progressive nature, Justice Verma Committee in 2013 again expressed the need for gender-neutral laws governing sexual offences.
HIGHLIGHTS OF THE BILL
o The bill proposes to introduce the definition of “modesty” under section 2 of the Indian Penal Code. It intends to describe it as an attribute that attaches to the personality concerning the commonly held belief of morality, decency, and integrity of speech, behaviour, in any man, woman, or transgender. Anyways, there is a lacuna since IPC envisages definitions under section 6 and not Section 2. Section 2 deals with the jurisdictions.
o The bill proposes an amendment to Section 354- 354D of IPC. These provisions define the offences relating to outraging the modesty of women, sexual harassment, Intent to disrobe, voyeurism, and stalking. These provisions are to be modified for keeping the sex of the perpetrator and victims of rape into consideration.
o Amendment to Section 375 of IPC. The Bill proposes to replace pronouns referencing “men” and ‘women’ specifically with words such as “any person” or “other person” effectively making the offence of rape gender-neutral.
oThe bill also proposes to include the words ‘penis’ and ‘vagina’ with the phrase ‘genital’ which is subsequently defined under Explanation 1 to mean the penis and vagina. The definition of rape is completely victimizing women and men as perpetrators.
oThe Bill proposes the insertion of a new section 375A that defines the offence of sexual assault as the intentional touching of the genitals, anus or breasts or making one person touch such parts of the other person without consent or the use of unwelcome words, gestures which creates an “unwelcome threat of actionable nature” with a punishment of rigorous imprisonment of up to three years and/or fine. The bill proposes to identify men also to be victims of rape and considering intentional touching, unwelcomed words as also a sexual assault against men.
oThis bill proposes to make the offences listed under Sections 376A, 376A, 376C & 376D of IPC gender neutral as well, apart from specific sub-sections related to the rape of women and children in custody.
Moreover, the bill discusses appropriate amendments to be made on the Indian Penal Code, Code of Criminal procedure, and also the Indian Evidence Act. It also puts into perspective the recognition given by the Supreme Court to the transgender communities and seeks to include them within the ambits of sexual offence laws as well.
GENDER NEUTRAL LAWS ON INDIAN PERSPECTIVE
The Constitution of India guarantees all persons the right to personal life and liberty, equal protection of laws, and prohibits any discrimination based on sex. The 21st century is changed and progressive and recognizes the issues loud and clear. The gender stereotypes are deeply rooted in society and it is high time that the laws of India recognize the issues. Indian society is deep-rooted stigmatized in gender stereotypes. Most of the old people do not even know the existence of homosexuality. Some conservatives have an opinion that homosexuality is a disease and not a sexual orientation. In this society, it is very essential to bring out the problems faced by men, transgender, and break the stereotypes. Education is key. It is also a problem in society that men are stigmatized to be strong. They are not encouraged to bring out the emotions in them. Because of this, men keep all their problems with themselves and this is one of the reasons why there are more suicides by men than women.
The need for gender-neutral laws is always being slammed by feminist movements. They assess that these laws would undermine the problems faced by women in the country. But it would be a social failure if we deny the existence of sexual offences against other genders instead of classifying them as unfortunate occurrences. The sole purpose of these laws is to protect the citizens of the country and not a specific gender. The lack of acknowledgement of male rape has impacted the ability of victims to recognize their victimization
CONCLUSION
The idea of India by our founding fathers is to endure differences of gender, caste, creed, religion, and colour. The intention of the bill is not to undermine the experiences of the women, but since we are a progressive country we should have some empathy towards male and transgender victims. It is also to be considered that other genders including women can also be perpetrators of women. India has shown its significant progressiveness after the Nirbaya case. This Bill is an endeavour to bring laws relating to sexual exploitation, harassment, and assault to be in step with changing social morality.
REFERENCES
1) Nachiket Deuskar, “What is a Private Member\'s Bill and why does it mostly fail the House test”. (2020)
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2) Criminal Law Amendment, 2019
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5) 172nd Law Commission Report.
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https://indiankanoon.org/ Accessed 29th of May 2020.
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