On 2nd February, the Supreme Court of India referred a bunch of Curative petitions against SEC 377 of the IPC (Indian Penal Code) to a 5-judge bench, finally showing a way forward for the LGBT community to inch closer to equality. It is yet not clear when the hearing will start or how long it may take, but this small step has certainly boosted the morale of the LGBT community. Most of whom had lost hope ages ago are daring to be optimistic.

However, we need to remember that SEC 377 is not the only law that hinders equality. Even if SEC 377 is truly abolished or amended to exclude consenting adults, here are some laws which will need to be amended to ensure that justice is available to all and not just to a gender, class or sexuality.

SEC 375 is used to convict rapists. It was recently amended by the Criminal Law (Amendment) Act 2013. This Section is inadequate in providing equal justice to all rape victims as it does not recognize:

Male victims of rape Genders other than male being capable of rape Marital rape, when the spouses aren’t living separately or the wife is above 16.

In the absence of any legal relief to male rape victims, many have defended SEC 377 as the only Section that could be used to book such rapists. But that is akin to treating the symptoms instead of the root cause. This section needs to be amended to make it completely Gender neutral and include marital rape.

Apart from that, all Sections in the Indian Penal Code that criminalize sexual assaults, sexual harassment, stalking and voyeurism, refuse to acknowledge that any gender other than women can be victims or that any gender other than man can be perpetrators.

This is highly disturbing and disadvantageous to both the queer and non-queer communities alike. However, this disadvantage makes the queer citizens of India much more vulnerable. We have seen numerous cases where feminine men, trans women, genderqueer and gender-fluid people have been harassed, mistreated, manhandled, molested, sexually assaulted, raped, had their modesty outraged often in public because of their appearance or sexuality. Also cases like that of Professor Siras of Aligarh, where he was videotaped in private, consensual sexual act are common and is often accompanied with blackmail. All such offences go unpunished even if reported as there aren’t any adequate provisions for these acts.

It is of utmost importance that we put all our efforts into convincing the judiciary to amend these Sections too:

Section 375 in IPC: Rape

A man is said to commit “rape” if he—

a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

b. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

c. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

d. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:

Against her will. Without her consent. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent. With or without her consent, when she is under eighteen years of age. When she is unable to communicate consent.

Exceptions:

A medical procedure or intervention shall not constitute rape. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Section 354 in IPC: Assault or criminal force to woman with intent to outrage her modesty

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine

Section 354 A in IPC: Sexual harassment and punishment for sexual harassment

A man committing any of the following acts—

(i) physical contact and advances involving unwelcome and explicit sexual overtures; or

(ii) a demand or request for sexual favours; or

(iii) showing pornography against the will of a woman ; or

(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.

Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Section 354 B in IPC: Assault or use of criminal force to woman with intent to disrobe

Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine.

Section 354 C in IPC: Voyeurism

Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.

Section 354 D in IPC: Stalking

Any man who—



i. follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

ii. monitors the use by a woman of the internet, email or any other form of electronic communication,

commits the offence of stalking;

Provided that such conduct shall not amount to stalking if the man who pursued it proves that—

i. it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

ii. it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

iii. in the particular circumstances such conduct was reasonable and justified.

Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.

Section 376 in IPC: Punishment for rape

Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.

Whoever—

being a police officer, commits rape,

i. within the limits of the police station to which such police officer is appointed; or

ii. in the premises of any station house; or

iii. on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or being a relative, guardian or teacher of, or a person in a position of trust or authority towards thewoman, commits rape on such woman ; or commits rape during communal or sectarian violence; or commits rape on a woman knowing her to be pregnant; or commits rape on a woman when she is under sixteen years of age; or commits rape, on a woman incapable of giving consent; or being in a position of control or dominance over a woman , commits rape on such woman ; or commits rape on a woman suffering from mental or physical disability; or while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman ; or commits rape repeatedly on the same woman ,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.

Section 376 A in IPC: Punishment for causing death or resulting in persistent vegetative state of victim

Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.

Source: Beyond SEC 377: More amendments needed in the IPC – FeelPankh