New Delhi: A bench of Acting Chief Justice of the Delhi High Court Gita Mittal and Justice C Hari Shankar has issued notice to the Centre on a Public Interest Litigation challenging the constitutionality of Section 375 and 376 of the Indian Penal Code as being biased towards men and not including women under its ambit as the perpetrators.
Sanjiv Kumar, the petitioner, has challenged the constitutionality of the existing provisions that deal with rape as they recognizes only a man as the perpetrator and the woman as a victim. Kumar has contended that critics have failed to recognize the importance of gender-neutral laws and has urged the bench to think “beyond the male-on-female paradigm.”
“In fact, gender is central to any understanding of how and why sexual violence occurs. What is clear, however, is that while females are the main victims of sexual violence and males the main perpetrators, one still has to consider how sexual assaults beyond the male-on-female paradigm are to be labelled by the criminal law,” reads the petition.
Kumar has also stated that the reason why men do not report instances of rape is the ‘very notion of patriarchy’ and how it prevents them from reporting such sexual abuse.
“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,” says Kumar.
Kumar has also relied on the recent Right to Privacy verdict delivered by a nine-judge bench where the right was declared as a part of the fundamental right under Article 21. The petitioner has stated that consent was of utmost importance in rape cases and how the right to privacy verdict mentions consent “38 times”. “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 CrPC/IPC and made them (or some sections of them) Null, Void and Unconstitutional,” reads the petition.
The petitioner has argued that such a provision is against Article 14 of the Constitution too which guarantees right to equality to all citizens. “Article 14 enshrines the right to equality before law and Article 15 provides for prohibition of discrimination on the grounds of sex. Men, therefore, must be entitled to the same rights as women. Even though male rape is a less frequent occurrence than female rape, they cannot be denied the right to equality” says Kumar.
The 138-page petition has detailed on how rape laws are drafted in a gender-neutral language in 63 countries and it is time India takes a cue from it. The petitioner has submitted a study of 93 countries in a tabular form and has stated that “63 were found to have rape or sexual assault laws written in gender-neutral language, 27 had rape laws that were completely gender-specific (i.e., the perpetrator was defined as male and the victim as female) and 6 had partly gender-neutral laws (the perpetrator was defined as male and the victims could be male or female.”
The matter which will now be heard on October 23 states that it was extremely difficult to accept that there was only a “single reality of rape” and the fact that men cannot be victimized was an incorrect notion.
“It becomes very difficult to accept that there is a single reality in rape; that is, men rape women and men can never be victimized, or if they are, this act has a meaning so different for men that it cannot be labelled as rape. Recognition of male victimization does not undermine the notion of patriarchy; it merely acknowledges that sexual coercion can also, in a minority of cases, exist in other contexts.”