The Indian Law Shamefully Fails To Protect Sexual Minorities And Men From Rape

Posted on February 25, 2014 in Society

By Srishti Malaviya:

As I sat pondering over the much disdained ‘Criminal Law Amendment’ Act 2013, a realization dawned upon me with overwhelming clarity — an individual’s identity is to a large extent managed and controlled by a mélange of social forces. The ‘Law’ is perhaps one of the most authoritative of such forces, seeking to indoctrinate a large mass of people into becoming disciplined citizens under the regime of the powerful. This order is sustained upon a carefully constructed façade of protection and welfare which in-turn makes supreme the need to be true to ‘naturalness’. To put it in context, the failure of the so-called ‘anti-rape’ law to account for the safety of those who do not put themselves in the strict male/female gender binary, reeks of such an anxiety of the powerful — represented by the Indian state — to protect and reinforce the ‘natural’ order.

anti rape

The heinous incident of 16thDecember 2012, which needs no recounting, had finally awoken the collective consciousness of our troubled society to the brutality immanent in gender relations and change was demanded vociferously. It was hoped that the progressive recommendations of the Justice Verma Committee Report, which was a path-breaking endeavour, would be accommodated within the Criminal Amendment Act to set in place a set of truly revolutionary laws to serve the cause of gender justice. Unfortunately, the Act eventually passed by the Parliament sidelined all significant recommendations of the Report, making it seem like an exercise in futility. The laws so set in place garnered much opprobrium for being deeply problematic on more than one account. Indeed, when viewed in the context of the labyrinthine complexity of the issue of gender-violence in our culture and society, the little that the Act offers appears mere persiflage.

The primary contention I wish to raise in this space with respect to the Act is the fact that the victim of the rape remains gender specific, i.e. a man can only be charged for raping a woman. Thus, rape or sexual assault of any person, whose sex remains indeterminate as per the man/woman binary, remains out of the ambit of protection under this law. Indian law thus fail to account for the security of transgendered, transsexuals and intersexes people from sexual violence. The singular provision in Indian Penal Code that is often touted by apologists to cater to them is the dubious Section 377 which in effect actually criminalizes the entire LGBT community and penalizes them for giving in to their essential nature! The picture that thus emerges begs to question – why are we so afraid to see beyond ‘natural’ order of man/woman dichotomy and accept the fact that sex/gender identity is best defined along a continuum?

What’s reflected in the aspect of gender specificity of the victim in the laws in question is a deep sense of anxiety over the need to preserve the traditional and hence ‘normal’ pattern of gender roles. In a structure of power which rests upon a neat categorical classification of all subjects, there is little scope for accommodating difference which is taken to be coterminous with inviting dissidence. Control is sought to be imposed by ensuring that individuals conform to the fixed gender identities assigned to them at birth and anyone falling outside this convenient arrangement is condemned to the margins of social and cultural life. The dilemma of those on the fringes is aggravated manifold when law, the protector, itself connives to ensure that their exclusion is permanent. Such is the case with the sexual minorities of this country then, who marginalized by society and culture find no refuge in law either.

It is not just the sexual minorities who suffer from the fixity of gender roles. The Law also fails to recognize that men can be raped too. Predefined notions of masculinity demand that men be aggressive and violent to perform their true nature. It is perhaps this reasoning that informs the rape laws of our country, in that they appear strangely oblivious to the very conceivable possibility of a man being in a submissive and weak position. Thus, a vehement denial of the prospect of having to deal with a ‘weak’ man seems implicit in the commandment that it is only upon a woman that rape can be inflicted. Further, since it is a woman’s ‘honour’ and ‘modesty’ that rests in her vagina, as dictated by the norms of patriarchy, it is only to her that shame can be brought upon through rape and thus it is only her who stands vulnerable to the crime of ‘outraged modesty’. Men’s honour lies in their ability to subjugate and hence accepting that a man could be raped would be a negation of this vital principle of masculinity!

Thus this forms yet another unfortunate instance of the ever-powerful patriarchal state ordaining its people to accept a predetermined identity or face the wrath of its violent structures through systematic exclusion from the framework of its patronage. No effort has been made to dismantle rigid discriminatory prescriptions of the social order; instead the same have been sanctioned yet again. It displays a disconcerting conviction of the larger society to protect and retain the constructed ‘natural’ order of traditional heterosexual social configuration. Clearly, when patriarchy is the creed of a society, the values of equality and justice become the first sacrifices offered at the altar of power.

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