The Supreme Court today refused to interfere in the petition challenging Section 375 of Indian Penal Code..The petition which had assailed the provision on the ground of violation of gender neutrality was heard by a Bench of CJI Ranjan Gogoi and Justice Sanjay Kishan Kaul..“This issue is valid but the provision which is otherwise valid cannot be struck down”, the Court remarked while granting liberty to the petitioners to make a representation to the legislature..“The issue raised pertains to Legislature for which petitioner may make representation”, the Court ordered..The Bench also remarked that the issue raised is valid but the Court is not the appropriate forum to deal with it..The petitioner had contended that Section 375 violates Articles 14, 15 and 21 of the Constitution as it does not account for rape of men and Transgender persons..It was the petitioner’s contention that the definition of rape under Section 375 is not gender-neutral and lack of acknowledgement of male and transgender rape has impacted the ability of victims to recognize their own victimization..The petitioner had submitted that gender neutrality within rape statutes is a concept that the criminal law should recognize and that both men and women can be rape victims as well as perpetrators..Gender neutrality within rape reflects modern understanding of the nature, effects, and dynamics of non-consensual penetrative sex acts, and is an evidence-led means of appropriately labelling criminal conduct..The petition stated that societal pressure and stigma prevents men and Transgender persons from speaking out about sexual assault they have had to face..The concept of masculinity and male vanity prevent male victims from coming forth and reporting such crimes..“Importantly, in the absence of legal recourse or remedy under law, there is no provision for any person except a woman to report rape or sexual assault.”.As for Transgender persons, their voices are curbed because of non-acceptance and societal pressure..Due to the same, there is a dearth in statistics of sexual assault of men and transgender persons..The petition adverted to the judgments of the Supreme Court in NALSA v. Union of India wherein Transgender persons were recognised as third gender..However, no recognition has been afforded to the sexual assault that Transgender persons are subjected to. Till date, the Transgender Rights Bill, 2016 has not taken the form of an Act. Hence, the Transgender community is remediless insofar as sexual assault is concerned, the petition states..Likewise, the decision in Navtej Singh Johar decriminalized consensual carnal intercourse against the order of nature holding Section 377 as violative of Articles 14, 15 and 21 of the Constitution of India, so long as the act is consensual..However, the judgment did not equate non-consensual carnal intercourse against the order of nature (between any 2 or more adults) as sexual assault. Instead, it continued to deem it as an unnatural offence only..It is the petitioner’s argument that Section 377 of the Code, even after being read down and made applicable to instances of non-consensual carnal intercourse against the order of nature by any person, does not account for the concept of bodily integrity, victimology, psychological trauma, coupled with societal stigmatization. On the other hand, Section 375 of the Code encompasses the aforementioned aspects qua female victims wherein only a man is the perpetrator..Thus, the petitioner had submitted that Section 375 applies only to women as victims and men as perpetrators. It did not take into account non-consensual sexual assault inflicted on a woman by a woman, on a man by another man, on transgender by another transgender or a man or woman, on a man by a woman. The sexual orientation and gender identity of the aforementioned persons involved may either be heterosexual, transgender including but not limited to homosexual, bi-sexual..The petitioner had, therefore, prayed that Section 375 of the Indian Penal Code be declared as ultra vires for being discriminatory and violative of Articles 14, 15 and 21 of the Constitution of India..Read the order below.
The Supreme Court today refused to interfere in the petition challenging Section 375 of Indian Penal Code..The petition which had assailed the provision on the ground of violation of gender neutrality was heard by a Bench of CJI Ranjan Gogoi and Justice Sanjay Kishan Kaul..“This issue is valid but the provision which is otherwise valid cannot be struck down”, the Court remarked while granting liberty to the petitioners to make a representation to the legislature..“The issue raised pertains to Legislature for which petitioner may make representation”, the Court ordered..The Bench also remarked that the issue raised is valid but the Court is not the appropriate forum to deal with it..The petitioner had contended that Section 375 violates Articles 14, 15 and 21 of the Constitution as it does not account for rape of men and Transgender persons..It was the petitioner’s contention that the definition of rape under Section 375 is not gender-neutral and lack of acknowledgement of male and transgender rape has impacted the ability of victims to recognize their own victimization..The petitioner had submitted that gender neutrality within rape statutes is a concept that the criminal law should recognize and that both men and women can be rape victims as well as perpetrators..Gender neutrality within rape reflects modern understanding of the nature, effects, and dynamics of non-consensual penetrative sex acts, and is an evidence-led means of appropriately labelling criminal conduct..The petition stated that societal pressure and stigma prevents men and Transgender persons from speaking out about sexual assault they have had to face..The concept of masculinity and male vanity prevent male victims from coming forth and reporting such crimes..“Importantly, in the absence of legal recourse or remedy under law, there is no provision for any person except a woman to report rape or sexual assault.”.As for Transgender persons, their voices are curbed because of non-acceptance and societal pressure..Due to the same, there is a dearth in statistics of sexual assault of men and transgender persons..The petition adverted to the judgments of the Supreme Court in NALSA v. Union of India wherein Transgender persons were recognised as third gender..However, no recognition has been afforded to the sexual assault that Transgender persons are subjected to. Till date, the Transgender Rights Bill, 2016 has not taken the form of an Act. Hence, the Transgender community is remediless insofar as sexual assault is concerned, the petition states..Likewise, the decision in Navtej Singh Johar decriminalized consensual carnal intercourse against the order of nature holding Section 377 as violative of Articles 14, 15 and 21 of the Constitution of India, so long as the act is consensual..However, the judgment did not equate non-consensual carnal intercourse against the order of nature (between any 2 or more adults) as sexual assault. Instead, it continued to deem it as an unnatural offence only..It is the petitioner’s argument that Section 377 of the Code, even after being read down and made applicable to instances of non-consensual carnal intercourse against the order of nature by any person, does not account for the concept of bodily integrity, victimology, psychological trauma, coupled with societal stigmatization. On the other hand, Section 375 of the Code encompasses the aforementioned aspects qua female victims wherein only a man is the perpetrator..Thus, the petitioner had submitted that Section 375 applies only to women as victims and men as perpetrators. It did not take into account non-consensual sexual assault inflicted on a woman by a woman, on a man by another man, on transgender by another transgender or a man or woman, on a man by a woman. The sexual orientation and gender identity of the aforementioned persons involved may either be heterosexual, transgender including but not limited to homosexual, bi-sexual..The petitioner had, therefore, prayed that Section 375 of the Indian Penal Code be declared as ultra vires for being discriminatory and violative of Articles 14, 15 and 21 of the Constitution of India..Read the order below.
