This article has been written by Nandan Rathi, a 5th year law student at Hidayatullah National Law University.
Abstract:
Defining gender roles and stereotypes plays an important role in the development of society. But it takes a different perspective when such gender stereotypes begin to influence the laws. If such a narrative influences any law, it creates a two-edged sword, benefitting only the gender it favors and others remain helpless. Therefore, there is a need to have a comprehensive legal system that respects everyone. The criminal laws in India were age-old and they required certain amendments to be made. Some of the major amendments have created good changes in the laws. With new criminal laws enforced, it brought a new change in the criminal justice system.
Key Words- Gender-Based Violence, Neutral Laws, Amendments
INTRODUCTION
India has been plagued with gender-based violence for a long time. The older criminal laws like the Indian Penal Code had to be amended several times to accommodate the changing nature of crimes committed. The laws have to be rewritten to provide justice to gender-based violence. But our laws do not address this issue completely. While laws have made an effort to keep women safe and protected, there are still no laws for men and transgender people even after so many amendments. Nobody is completely secure; anyone can be targeted based on their gender. This article shall discuss gender-based violence in India and what are the latest amendments enforced in criminal laws.
Violence Against Women and Amendments made-
Indian Penal Code of 1860 had to be amended quite a few times to cover and address the issue of violence against women. Recently, the major amendments introduced a series of measures to provide a sense of security to women and give fitting punishment to the culprits.
2013 Amendment-
“The Criminal Law (Amendment) Bill, 2013 also called Anti-Rape Bill” was enacted to bring amendments to rape provisions. The bill came into force after the infamous rape incident that occurred in Delhi shocked the entire nation. This incident was a wake-up call for the country to change its aging criminal law system.
“The act expanded the scope of sexual crimes in which women may fall victim, to various ways in which gender-based discrimination manifests itself”[1]. The act also emphasized the “rarest of rare cases” where the court can give capital punishment in such sensitive cases. “The act clarifies and extends the offense of sexual assault and rape as a result of abuse of a position of trust. The act also gives strong diktat to police to ensure registration of FIR, making it easier for rape victims to file police complaints”[2].
The act introduced several provisions in erstwhile IPC criminalizing various acts and importantly amended several sections to ‘protect the privacy of individuals’.
Reasons for Enactment of the Act-
The laws relating to sexual offenses were in dire need of revision at that time. Further, the brutal gang rape of 2012 brought widespread attention and demand to make “necessary reforms in the criminal justice system. The resulting act is deemed to be one of the significant changes that have been made in criminal laws”[3].
Setting up of Justice Verma Committee-
“A three-member committee was constituted, headed by Justice J.S. Verma to recommend amendments to criminal laws. The objective behind setting up this committee was to provide quicker trial and enhanced punishment for criminals accused of committing offenses against women and measures to implement them”[4]. In its report, the committee said the ‘lack of good governance’ caused violence against women. The committee pointed out several glaring deficiencies in bodies of government. It recommended transformative changes in legislation. “The committee recommended various changes in crimes against women, police, electoral, and educational reforms. The committee adopted a multidisciplinary approach enhancing the scope of laws”[5]. The report of the Verma Committee was comprehensive and resulted in the passing of Criminal Law (Amendment) 2013.
Major Recommendation-
Introduction of New Offenses-
Keeping in mind the safety of women in the country, the committee introduced some new offenses like “disrobing a woman, voyeurism, stalking, and trafficking”. The panel recommended reducing all forms of sexual offenses.
Enhance Punishments-
For Rape-
The panel did not recommend capital punishment for convicts. It enhanced the punishment to rigorous imprisonment from 7 years to life. If death is caused, then the punishment should not be less than 20 years extended to life. Similar to gang rape as well similar punishment was recommended.
Punishment for Other Offenses-
Up to Seven years of jail for Voyeurism, stalking, or attempting to stalk will attract 3 years of imprisonment, Acid Attack up to seven years, and trafficking Rigorous imprisonment for 7-10 years.
Complaint Registration and Medical Examination-
Every complaint made to the police station must be recorded and it shall be the duty of society to register any incident that occurred in the society. If any police officer does not comply with this, strict action will be taken. For medical examination, uniform practice is advocated.
“Bill of Rights for Women-
To ensure a woman lives with dignity, security, and the right to have complete sexual autonomy”[6], a separate Bill of Rights was suggested.
New Offenses in IPC through 2013 Amendment-
Sexual Harassment- Sec 354-A
Earlier no provision specifically laid down punishment for sexual harassment. Now sexual harassment has been made a “gender-neutral offense”. Punishment includes up to three years imprisonment.
“Assault or Use of Criminal Force to Woman with Intent to Disrobe- Section 354B”
Earlier outraging the modesty of women in public was punishable with a maximum of two years in jail along with a fine. This punishment was now increased to a maximum of seven years.
Voyeurism Sec 354C
“It refers to the act of watching a person doing private activities. If a man watches a woman engaged in such acts, that man is said to have committed voyeurism and will be punished with up to three years and a fine for a first-time offense. For subsequent misconduct, that man will be liable for a maximum of seven years with a fine”[7].
Stalking 354D
Earlier stalking was gender neutral offense. However, the 2013 amendment replaced the term “Whosoever to Any Man” thereby making this provision gender-specific.
Changes in Rape related sections-
Many changes were brought in provisions related to rape. “The scope of rape was expanded to include oral sex as well as the insertion of any object in private parts of a woman’s body. Section 376A to Section 376D were added to cover various aspects to bring clarity to laws”[8].
Criticism of 2013 Amendments-
After coming into force, the act met with certain criticisms. The act failed to implement several important recommendations given by Justice Verman Committee on marital rape, age of consent, and amending the Armed Forces (Special Powers) Act.
The major point of debate was around failing to “criminalize marital rape”, as recommended by the committee. Even today, the government has failed to include marital rape as a crime and this puts India in negative light across the globe.
Another good recommendation by the committee was restricting politicians from contesting any form of election, who are charged with sexual offenses. However, the Ordinance overlooked this and ignored it. Even today many politicians are charged with serious offenses of sexual crimes but they still end up contesting elections and winning them as well.
The Committee also wanted to make videography mandatory when recording the victim’s statement, however, the ordinance rejected it.
There were some other changes that could have been brought through the act, but it failed to do so. Nevertheless, the 2013 Amendment marked a significant milestone in the Indian Criminal Law System.
Violence Against Men-
There is a common prevailing tendency that men are always perpetrators. Laws are also made in such a manner to punish only men concerning certain offenses. But in reality, men also suffer from abuse “verbally, physically, psychologically, emotionally, and sexually. Men don’t report these crimes and have to suffer silently”[9].
When one refers to domestic violence, it is “naturally assumed that the wife would be a victim. But domestic violence is not just limited to women only. Domestic violence is not gender specific, instead, it emphasizes the relation of victim to perpetrator. A bare perusal of the Domestic Violence Act has already declared women to be victims and men to be guilty”[10]. This notion is fundamentally wrong. Anybody can be affected by domestic violence and anyone can be an abuser.
A study[11] was carried out to reveal that men usually suffer from some form of domestic violence. Even courts have taken cognizance of the same and have formulated guidelines against false allegations of domestic violence by women. In India, “Domestic violence was recognized as a criminal offense in 1983”. Domestic violence was punishable under Section 498A of IPC.
According to the “National Family Health Survey, more than 50% of males experience violence in the house. This percentage is much higher than in countries like the USA, UK and Canada. The survey conducted exposed some harsh truths. Many men suffered from such abuse multiple times”[12].
“The types of violence that are prevalent are emotional, physical, and psychological. Physical violence includes slapping, pushing, and hitting by wife, her relatives, and throwing objects. Slapping was the most common form of violence.
In psychological and mental forms of violence, criticism is the most common form, especially if such criticism is done in front of others. It constitutes mental abuse if done at a repeated level”[13].
False rape charges and other charges like molestation is also rampant. Since laws are made in favor of women, this has often been misused. “In Arnesh Kumar vs State of Bihar, the Supreme Court issued guidelines and raised concerns against the misuse of laws, especially Section 498A of IPC”[14].
Effects of Domestic Violence Against Men-
Any form of violence affects human beings. Naturally, violence against men will have a physical, emotional, or psychological impact. “It has been found that the rate of suicides in men is higher when a man is married as compared to an unmarried man”[15]. According to the WHO, “women tend to think more about committing suicide, whereas men die by suicide more frequently. This is called gender paradox in society”[16].
Societal and Psychological Dimensions-
Males dominate the society. But when males are attacked in any form of violence, it raises the question of structural norms. Many men suffering from violence, don’t want to report, it for fear of harming their reputation and what people will think.
Legal Issues-
Despite various research, studies that have shown that men also suffer from violence committed against them, there are still no comprehensive laws made to protect men. Courts have from time to time interfered to “raise concerns and bring necessary changes to be made by parliament. Adultery considers man as the culprit. There is no law or provision under which a man can complain of adultery against his wife”[17]. This has resulted in increasing false allegations against men, there is also no strict enforcement to tackle the malafide use of law. “The government has not taken any stand on addressing this issue nor has any law been made. Men have no legal recourse as the legal system doesn’t even see them as victims. This violates Article 14 of the Constitution, equality before law, since men’s rights are not acknowledged”[18].
Most countries have recognized domestic violence against both men and women. Either party has the right to approach the court for a restraining order against the other. This is not the case in India.
In 2013, the “United Kingdom government revised its definition of domestic violence and abuse to a more gender-neutral approach by including “regardless of gender or sexuality”. In the United States as well the definition of Domestic Violence includes protection for the husband”[19]. Thus, the laws in both countries are gender-neutral and provide relief to both parties.
Need for Having Gender Neutral Laws-
There is an urgent requirement of law where it can address false allegations made against men, which is the need of the hour. Any form of violence, must not be differentiated based on gender. Equal protection is not just a fundamental right but also a human right. Necessary amendments are required to cover men and women equally.
CRIMINAL LAW AMENDMENT BILL 2019- ‘Road to Gender Neutrality’-
The 2013 Amendment brought several necessary changes in Criminal Laws. However, certain issues needed to be incorporated into the laws. One major flaw in criminal laws was they favored only women and ignored the rights of men. Many countries already had gender-neutral laws, and it was time India adopted the same. This was Bill’s primary goal. The Bill intended to respect and emphasizes transgender and male rape.
Major Changes brought by the bill-
Before the 2019 Act, a 2018 amendment bill brought changes in criminal laws. “Under the POSCO act, the rape of minors will attract higher punishment. Subsequently, the punishment was increased for rape and gang rape for different ages of victims. The 2018 ordinance also made changes related to the investigation of child rape must now be completed in 2 months (earlier 3 months) and no anticipatory bail shall be provided to the accused. Any appeal against a rape sentence must be resolved within six months”[20].
Changes under the 2019 Act-
The act introduced the definition of modesty. It is defined not just in terms of women, but covers all genders to have more inclusivity.
The bill proposed changes to Section 354, 354A-D. This is done to ensure that not just men are charged under offense, but to give clarity and protection to all, thus advocating gender-neutral laws.
“The bill further seeks to amend provisions related to rape, section 375, 376, 376A-D by replacing ‘man’ with any person. The bill also proposed to include section 375A to define sexual assault, which shall be punishable by up to three years in prison and a fine”[21].
Drawbacks of the Bill-
The bill while respecting the rights of men, failed to provide adequate protection to transgender people. Instead of categorically mentioning them, a separate category called ‘others’ is created to cover the rights of transgender people. This limits the protection, as there is still no direct remedy available.
Violence Against Transgender Persons-
Transgender people in India have to fight a long battle to get the proper recognition in society. It has taken a huge struggle to be woven into the fabric of society and acknowledged by the government. Despite the enactment of some laws and Supreme Court rulings, the transgender community is once again on the verge of suffering, dignity in question, and existence shattered. The discrimination, abuse, and challenges faced by the trans community are beyond repairable.
In 2019, the Transgender Person (Protection of Rights) Act was passed. It was seen as a beacon of hope for protecting the rights and celebrated for finally doing right for the community. “It promised protection and welfare, declaring a wide range of crimes against them would not be tolerated. The act also introduced penalties for various offenses ranging from six months to two years of imprisonment with a fine”[22]. But after five years the same law has become toothless. The level of discrimination, hatred, and crimes against Transgender community continues to rise.
“National Crimes Record Bureau (NCRB) report Crimes in India 2022, surprisingly reveals a low number of crimes committed against transgender people”[23]. However, many activists have said these low figures are due to the non-reporting of most cases. This hides the true crime picture in India as numbers often hide the actual reality.
In recent times, there has been a surge in cases of mob lynching against trans people. Various such incidents highlight the sad state of affairs in the country. Furthermore, trans people don’t get support from police personnel. It has become common for trans people to encounter hostility, harassment, and dismissive attitudes from police when they want to file an FIR or report any incidents. There is a lack of sensitization and awareness in society.
“A National Human Rights Commission Report highlighted that more than 90% of transgender individuals had to face physical or verbal abuse by law enforcement officials”[24]. This shows law enforcement itself is to be blamed for failing to protect trans people, but instead alienate and victimize them.
The Supreme Court NALSA judgment of 2014[25] and the Navtej Singh Johar case of 2018[26] were path-breaking in giving rights to transgender people. The 2019 Act, further strengthens the cause, however, there is still a long way to go in protecting the rights of the LGBTQ+ community.
The New Criminal Laws- 2024
The Indian Government decided to replace colonial-era criminal laws IPC, CrPC, and Evidence Act with new acts. These laws were enforced from July 2024 to bring a major overhaul in the criminal justice system.
While some of the changes that are incorporated are essential, there are still various provisions that have a regressive impact on society. One of the major criticisms of the new law is omitting section 377 of IPC. Section 377 was decriminalized in 2018 and was important in protecting the rights of transgender people. The parliamentary committee while drafting the law, suggested the inclusion of the section. However, the Bharatiya Nyaya Sanhita (BNS) failed to incorporate it. This will have a serious impact as it makes rape of men, transgender individuals, and animals no offense.
Thus, the omission of section 377, will create a void in the law. The lack of legal protection for adult males and transgender people against sexual violence is concerning. Below 18 years old people who face such issues are covered under the POSCO Act.
Even if section 377 was not retained, a new provision could have been introduced as a part of the laws on rape to criminalize offenses against men and transgender people. The present law covers only rape against women. Violations of the bodies of men and transgender persons are not even considered a crime. It has been deeply prejudiced against minorities and mere amendments in law won’t suffice. The state must introduce the laws and ensure they are accessible when required.
The new laws were expected to be gender-neutral, but they failed to deliver. They need to be revised and properly discussed.
Conclusion
The gender-based violence is a threat to a peaceful society. Such acts not only harm people but also raise critical questions about the effectiveness of law enforcement. India needs to have laws made to cover everyone, and not just limited to one gender. The recent amendments made in criminal laws are appreciated for having made an impact. However, many such amendments are required to make laws accessible.
[1] ILSIJLM (2021). Critical analysis of Criminal Law Amendment Act, 2013: Ankur Pandey & Surbhi. – ILSIJLM. [online] ILSIJLM. Available at: https://ilsijlm.indianlegalsolution.com/critical-analysis-of-criminal-law-amendment-act-2013-ankur-pandey-surbhi/
[2] Yamini (2015). Criminal Law (Amendment) Act, 2013: Sexual Offences. [online] Academike. Available at: https://www.lawctopus.com/academike/criminal-law-amendment/.
[3] Jaishankar, K. (2019). Routledge Handbook of South Asian Criminology. Routledge.
[4] Atul Jaybhaye (2023). Revisiting Juvenile Justice in India. Taylor & Francis.
[5] Kothari, J. (2018). Justice Verma Commitee Report: A manifesto of change – Centre for Law & Policy Research. [online] Centre for Law & Policy Research. Available at: https://clpr.org.in/blog/justice-verma-commitee-report-a-manifesto-of-change/
[6] Indiatogether.org. (2024). India Together: Verma Committee: Key recommendations – 14 February 2013. [online] Available at: https://indiatogether.org/justverma-laws
[7] Finology.in. (2022). Voyeurism as a crime: Section 354C IPC. [online] Available at: https://blog.finology.in/Legal-news/voyeurism-as-a-crime-section-354c-ipc
[8] Amendments to laws other than the IPC brought about by the Criminal Laws Amendment Bill, 2013. (2013). Available at: https://prsindia.org/files/bills_acts/bills_parliament/2013/Changes_in_laws_other_than_IPC_by_Criminal_Laws__Bill.pdf [Accessed 10 Oct. 2024].
[9] Hamel J. Facts and statistics on domestic violence at-a-glance. DV Research. Retrieved from https://www.domesticviolenceresearch.org/domestic-violence-facts-and-statistics-at-a-glance/
[10] Deshpande, S. (2019). Sociocultural and Legal Aspects of Violence Against Men. Journal of Psychosexual Health, [online] 1(3-4), pp.246–249. doi:https://doi.org/10.1177/2631831819894176.
[11] Malik JS, Nadda A. A cross-sectional study of gender-based violence against men in the rural area of Haryana, India. Indian J Commu Med. 2019;44(1):35.
[12] National Family Health Survey (NFHS-3). 2005–06 Domestic Violence: India. Vol. 1 Mumbai: International Institute for Population Sciences; 2007. Retrieved from https://www.measuredhs.com/pubs/pdf/FRIND3/15Chapter15.pdf
[13] Hamel J. Facts and statistics on domestic violence at-a-glance. DV Research. Retrieved from https://www.domesticviolenceresearch.org/domestic-violence-facts-and-statistics-at-a-glance/
[14] AIR 2014 SUPREME COURT 2756 Arnesh Kumar vs State of Bihar
[15] Sarkar S, Dsouza R, Dasgupta A. Domestic Violence against Men: A Study Report by Save Family Foundation. New Delhi: Save Family Foundation; 2007. Retrieved from https://ipc498a.files.wordpress.com/2007/10/domestic-violence-against-men.pdf
[16] World Health Organization. Violence prevention; 2019. Retrieved from https://www.who.int/violence_injury_prevention/violence/en/
[17] Supra Note 10
[18] Khandelwal, K.Y. (2020). the other side of the coin: domestic violence against men, an unaddressed reality in india. [online] lawyersclubindia. Available at: https://www.lawyersclubindia.com/articles/domestic-violence-against-men-an-unaddressed-reality-in-india-11390.asp
[19] Ibid.
[20] Kashyap, A. (2018). A Critical Analysis of Criminal Law Amendment Act, 2018. [online] Legalserviceindia.com. Available at: https://www.legalserviceindia.com/legal/article-5307-a-critical-analysis-of-criminal-law-amendment-act-2018.html
[21] Sehgal, D.R. (2021). The Criminal Law Amendment Bill, 2019 – a way forward for gender neutrality. [online] iPleaders. Available at: https://blog.ipleaders.in/criminal-law-amendment-bill-2019-way-forward-gender-neutrality/.
[22] Drishti IAS. (2019). The Transgender Persons (Protection of Rights) Act. [online] Available at: https://www.drishtiias.com/to-the-points/Paper2/the-transgender-persons-protection-of-rights-act.
[23] Singh, R. (2023). How to read the NCRB 2022 report on crime in India. [online] The Indian Express. Available at: https://indianexpress.com/article/explained/ncrb-2022-report-crime-india-limitations-9054144/.
[24] Kumar, A. (2024). Anti-transgender discrimination, violence in India persists. [online] Washington Blade: LGBTQ News, Politics, LGBTQ Rights, Gay News. Available at: https://www.washingtonblade.com/2024/09/24/anti-transgender-discrimination-violence-in-india-persists/
[25] WRIT PETITION (CIVIL) NO.400 OF 2012
[26] AIR 2018 SUPREME COURT 4321
