The Criminal Law (Amendment) bill, 2019 was introduced in the Rajya Sabha as a private member’s bill by K.T.S Tulsi, an advocate and a parliamentarian. The bill intended to make the laws related to sexual offences, gender neutral, in order to extend the protection to males as well as transgender who have now been recognized as the third gender. Under the existing sexual offences related laws, only females and children below 18 years of age are protected, but such offences are not limited to these groups only. With the partial decriminalization of S. 377 of IPC i.e. consensual sexual activities between two adults of same gender, there is need to criminalize such non-consensual sexual activities, also with the progressive approach that India has begun to adopt, it is time to put a full-stop on stereotyping roles based on gender. The current provisions do not consider females to be perpetrators and males to be victims, this would have been true in the past but not anymore.
Changes that the bill proposes to bring:
The bill proposes-
- To include the definition of ‘Modesty’ in Section 2 of the Indian Penal Code as ”an attribute which attaches to the personality with regard to commonly held belief of morality, decency and integrity of speech and behavior, in any man, woman or a transgender.”
- To insert ‘Transgender’ in Section 8, IPC after ‘female’ to mean that the pronoun ‘he’ used in the code would denote male, female or transgender.
- To include the definition of ‘Others’ “denote human being including but are not limited to Transgender of any age.” in Section 10, IPC after the definition of man and woman.
- Further many terms in sections 354, 354A, 354B, 354C, 354D, 375, 376, 376A, 376C and 376D were made gender-neutral to expand their applicability. The table below shows the substitution of words.
|Section to be Amended||Existing Terms/Words||New/Substituted Words|
|354||‘woman’‘Her’‘Woman’‘Her’‘He’||‘Any person’‘His’‘Person’‘Other person’s’‘It’|
|354A||‘A man’ and ‘Any man’‘Woman’||‘Whoever’‘Any person’|
|354B||‘Any man’‘Woman’‘Her’||‘Whoever’‘Person’‘The person’|
|345C||‘Any man’‘Woman’ and ‘She’||‘Whoever’‘Any person’|
|345D||‘Any man’‘Woman’‘He/she’||‘Whoever’‘Any person’‘The person’|
|376 (except for (2)(d) & (h)||‘Woman’‘She’||‘Any person’‘The person’|
|376A||‘The Woman’||‘Any person’|
|376C (except for (c); expl. 3 & 4And in sub-clause (c)||‘Any Woman’‘His’ ‘Him’||‘Any person’‘The person’s’‘The person’|
|376D||‘A woman’||‘Any person’|
|375 (except for (4) and exception 2)||‘A man’‘A woman’‘Her’‘She’‘Such woman’||‘Any person’‘Any other person’‘The person’s’‘The Person’‘Such person’|
|375 (except for (b)) AndExcept for Expl. 1||‘Penis’‘Vagina’||‘Genital’‘Genital’|
- Then insertion of definition of Genital in Explanation 1 to s.375. Further, Insertion of explanation 3 which makes s.8 applicable to this section, and then the proviso as it is.
- Insertion of s. 375A, which reads as follow-
- 375A. Sexual Assault and Punishment of Sexual Assault – “(1) The following acts shall Constitute the offence of sexual assault, if any person: – (a) Intentionally touches the genital, anus or breast of the person or makes the person, or touch the vagina, penis, anus or breast of that person or any other person, without the other person’s consent except where such touching is carried out for proper Hygienic or medical purposes; (b) uses words, acts or gestures towards another person which create an unwelcome actionable threat of sexual nature or results in any unwelcome advance; and shall be punished with rigorous imprisonment that may extend to three years, or with fine, or both.
- Explanation 1.–– For the purposes of this section, the word ‘genital’ denotes penis and vagina; and “vagina” shall also include labia majora.
- Explanation 2.–– Consent means an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates willingness to participate in the specific act. ”
- Explanation 3. For the purposes of this section, the word ‘touches’ shall mean touching of sexual nature without the consent of the victim and in absence of a reasonable belief that the victim has consented for the same.
- Furthermore, relevant sections of Indian Evidence Act, 1872 and Code of Criminal Procedure, 1973 were also proposed to be amended for the effective implementation of the bill.
Though the intention of proposing this bill is the inclusion of males and other gender in the provisions that provide protection against sexual offences and to a great extent it would be able to do so, but some of these amendments are problematic for all the genders, like the proposed definition of modesty is very subjective as it is based on ‘commonly held beliefs’ which can vary greatly from person to person and region to region. The definition has to be objective. Further ‘unwelcome actionable threat of sexual nature’ in s.375 (1) (b) can include anything and everything; it is unclear as to what exactly would amount to it. Furthermore, in Explanation 3 to s.375A, use of the phrase ‘absence of a reasonable belief that the victim has consented’ gives a wide scope for circumventing the provision and this is against the spirit of law. For amending such a wholesome penal code, it is expected that a bill for this purpose, will not have such gaps. Though the bill did try to imbibe the modern, progressive approach, but it could have been drafted more effectively by considering the consequences and applications of the above mentioned gaps. An amendment must only be for the betterment, it just cannot be for detriment, and this bill due to the mentioned lacunas can become detrimental to the existing system of protection of females.
The introduction of this bill shows the consciousness of our parliamentarians towards the changing social issues and circumstances. With a bit of changes in the bill, it could really be an aid in the achievement of the rights of equal protection of laws and prohibition of discrimination only on ground of sex, which are encompassed in the Right to Equality.
Written by Bhavika Makhija, Intern (December 2020), Lexstructor
Reviewed by Editorial Team