On 1st December, the Supreme Court of India raised doubts on whether a woman could be charged for the offence of rape under section 375 and for gang rape under Section 376D of the Indian Penal Code, 1860.
The legal framework under the Indian Penal Code provides that only a man may be punished for committing rape on a woman, according to section 376(1) of the IPC. Section 376(2((g), on the other hand, provides the punishment for gangrape and also mentions that where a woman is raped by one or more in a group of “persons”, acting in furtherance of their common intention, then each of the persons shall be deemed to have committed gangrape.
The word “person”, defined under section 11, does not exclude women from its ambit. Therefore, “person” denotes both a man and woman, among a company, an association, etc.
Accordingly, Section 375 necessarily makes the commission of the offence by a man as an ingredient, but such qualification does not exist within the definition of gangrape under Section 376D. The essential question is whether the judiciary, going forward, takes the approach of strict interpretation or goes the way of judicial activism and interprets the statute in such a way that its objectives are realised.
The present article deals with this question, referring to various precedents, and also compares and analyses the present law in international jurisdictions through a comparative analysis.
Position of Law in India
A plain reading of Section 375 says that an offence of rape can only be committed by a man against a woman. Section 376D defines gangrape where the offender can be a group of “persons”. Accordingly, a woman can be held guilty of committing a gang rape, but the judicial precedents differ. Priya Patel vs. State of Madhya Pradesh is a landmark decision, answering the question of a woman’s conviction in rape. The accused was charged under Section 376(2)(g), and the legality of this charge was questioned. The decision of the Supreme Court entailed that even if a woman does not commit rape, by joint criminal liability, her act of facilitating the rape would make her guilty of gang rape under section 376(2)(g).
The Supreme Court, in this judgment, held that punishing a woman for rape is conceptually inconceivable. The rationale provided was that the phrase “in furtherance of common intention,” as appearing in Section 376(2)(g), postulates that the common intention is to commit rape. The Supreme Court held that a woman cannot have an intention to commit rape. The Supreme Court decided in favour of the accused and did not convict her under Section 376(2)(g).
Since this decision, there has been a change in Indian criminal law through the watershed amendment – The Criminal Law (Amendment) Act, 2013, which is also known as the Nirbhaya Act. The Lok Sabha passed it on 19th March 2013. As a result of this amendment, sexual offences were made more stringent and severe. The amendment act also added Section 376D in the Indian Penal Code, which defines the offence of “gang rape”.
In February 2023, the Allahabad High Court in Suneeta Pandey vs. the State of UP and Another opted for a broad interpretation of the word “persons” and rejected the argument that a woman cannot be prosecuted for the offence of gang rape. Accordingly, a petition under Section 482 of CrPC was also rejected. The court held that such an argument is not valid in light of the 2013 amendment. The court noted a distinction in the offenders under sections 375 and 376D, saying that a woman cannot be held guilty for an offence under section 375, but the same cannot be said regarding section 376D. The court held that a woman cannot commit the offence of rape, but she may be prosecuted for gang rape if she facilitated such commission.
Recently, on 1st December 2023, the Apex Court, in Kamaljit Kaur vs. the State of Punjab, questioned the counsel for a petitioner who relied on the Priya Patel judgment, asking why Section 376D uses the word “persons” instead of “man” if it did not intend to bring “persons” within its ambit. The Court also noted its surprise at the legislators’ missing this legislative gap.
The Indian jurisprudence surrounding the offence of rape remains stationary at this point, but the Court’s expression of doubt upon the language used by the legislators provides a hint of direction and a probability of filling the causus omissus in the near future.
Position of Law in the United States of America
A 2014 study conducted by the National Crime Victimization Survey found that 38% of rape victims were men. Such a finding would lay down a premise for a definition of rape that would remove the gender of the victim, but an updated definition accounts for a victim or a perpetrator of any gender. Although the definition of rape in the United States of America has now become gender-neutral, a minority of states still use the traditional definition, wherein the perpetrator and victim are gendered.
The basic rationale behind gender neutrality in rape laws is to include the acts which resemble rape in terms of physiological and psychological consequences within its ambit.
Position of Law in the United Kingdom
Section 1 of the Sexual Offences Act of 2003 uses the pronoun “his” but it has been contended that it is merely misleading because of the historical practice of laws being written using male pronouns. Although the male pronouns are a misnomer, under English law, a woman can still not be prosecuted for rape as a principal offender by the nature of the offence, but she can be prosecuted as an accomplice. This interpretation of the English is more in line with the recent observations by the Allahabad High Court.
Gender neutrality in English Rape Laws was achieved through the Sexual Offences Act, 2003. This also highlights an essential link between the letter of the law and the societal recognition given to the premise of such law. Inaction on the part of the legislators can also be partly attributed to little societal recognition that is given to rape that could be committed against the male members of society.
Gender-Neutrality across the Globe
Jurisdictions including Canada, Australia, Ireland, Finland and Wales, among others, have implemented gender-neutral rape laws, but the implementation is not uniform across these jurisdictions. Except for England and Wales, the above-mentioned jurisdictions have achieved full gender neutrality in rape laws to recognise that women can physically commit the act of rape. Their definitions also include assault, under which a woman could coerce a man to commit sexual intercourse with her. Most of these jurisdictions also recognise same-sex rape. Indiana is one of the exceptions that recognises rape only between heterosexuals.
Section 377 of the Indian Penal Code was struck down in Navtej Singh Johar vs. Union of India, and one of the flaws with the provision was that it equated homosexuality with sexual perversity between homosexuals, hence leading to criminalisation. It is contended that the upcoming legislation – Bharatiya Nyaya Sahita – could bring back the offence enumerated under Section 377 of the Indian Penal Code.
The Way Forward
A worrying pattern noted from the presence of gender-neutral rape laws is that such recognition is prevalent mainly in Europe but not in Asia or the Subcontinent. It is proposed that the Indian Law Commission, or the appropriate agency, go ahead with the approach taken by the Criminalization survey in the USA to obtain the necessary statistics. Such gender-neutral reform would be a significant step towards an egalitarian reform of the Indian Criminal Law.
The interpretation of India’s rape laws remains ambiguous, with recent judicial pronouncements hinting at potential change. While the US and UK lean towards gender-neutral laws, India lags. Recognising this global trend and conducting surveys to understand sexual violence demographics is crucial for comprehensive reform. Embracing gender neutrality in rape laws would be a significant step towards an egalitarian criminal justice system in India.
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This article is written and submitted by Vansh Gaint during his course of internship at B&B Associates LLP. Vansh is a 2nd year BA LLB student at Gujarat National Law University.