The Delhi High Court has sought the government’s response on a plea seeking to declare the “gender-specific” sections related to rape and its punishment under Indian Penal Code (IPC) as unconstitutional. A bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar asked the government to reply within three weeks and posted the matter for further hearing on October 23.
Section 375 of the IPC deals with rape committed by man and section 376 lists out the punishment for the said offence. “IPC 375 and IPC 376, in current form, which is gender specific and not gender neutral, doesn’t secure males and thus doesn’t stand the constitutional test and fails in Right to Privacy,” the petition, filed by Sanjjiiv Kkumaar, an activist, said.
He also said that as per the recent apex court ruling on Right to Privacy, both male and female have equal protection of law under the Constitution. The petition said that no one can claim special privilege if the perpetrator of the crime is a female and she is immune to criminal action.
“Similarly, if the (rape) victim is male, he has right of equal protection, equal to that of a female in like circumstances,” it said and added that 63 countries have gender-neutral rape laws. “After the Right to Privacy ruling where consent and bodily integrity of each citizen is now a fundamental right as part of the freedoms and are intrinsic part of right to life and personal liberty under Article 21, female and male both have equality before law and equal protection of law under Article 14 guaranteed by Part III of the Constitution,” the petition said. Kkumaar also pointed out that for a brief period of 58 days, India had a gender neutral rape law – The Criminal Law (Amendment) Ordinance 2013 which was repealed after protests from certain quarters of the society.
The plea, also referred to the recent murder of a boy in the Ryan International school in Gurgaon, allegedly by a 42-year-old man after he had resisted an attempt to sodomise him. It said that boys under the age of 18 are protected under Protection of Children from Sexual Offences Act (POCSO), but once they pass the age, they “are robbed of their rights”.
“It becomes very difficult to accept that there is a single reality in rape; that is, men rape women and … this act has a meaning so different for men that it cannot be labelled as rape,” it said. The petition also claimed that the notion of patriarchy was the reason why men refused to come out in the open to report sexual crimes against them. “If a male alleges that a 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,” it said.