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The Obvious Problem With India’s Gender-Specific Rape Law

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The problem with India and its laws on rape is that we as a nation wait for some gruesome case to come before us, following which; we review our laws on sexual offences. If we follow the trends and footsteps of the evolution of rape laws in India then we can conclude that these changes were driven when some leading cases came before the nation. These changes on sexual offences came during 1983 and further amendments came in 2013. The initial changes on rape law came during 1983 when a leading case on the custodial rape of the tribal girl Mathura (Tukaram v. state of Maharashtra) came before supreme Supreme Court. This case was widely criticized by the common citizenry of this country, following which, India changed its law and recognized custodial rape through criminal law amendment of 1983.

Another such case which propelled Indian legislature to pass a statute on sexual harassment was generated from the guidelines given by Supreme Court in the case of a social worker Bhanwari Devi which dealt with sexual harassment at workplace, known as Vishakha and others v. the state of Rajasthan.

The recent case of Nirbhaya enraged the entire nation and a mass protest against the brutal rape of the young paramedical student occurred nationwide, while its centre was in Delhi where youths took over the streets and protested against existing laws. Only after seeing the nation-wide attention to the heinous case, had lawmakers agreed to make amendments to rape laws which made the punishment for such cases more stringent.

Aruna Shanbaug

Nirbhaya was a result of not taking lessons from the case of Aruna Shanbaug where the young nurse spent all her life in bed in a vegetative state after being sexually assaulted brutally. The accused was charged with sexual assault as the crime was committed anally and her virginity was found intact. Though she is remembered for changing laws on suicide and euthanasia, but we were perhaps waiting for another brutal act to befall so that we reformed our laws again.

India recognized a gender-neutral rape law through the Criminal Law Amendment Ordinance 2013 passed by Union Cabinet following the Nirbhaya case, in which rape was considered a gender-neutral crime, but due to vested interests of certain organisations, the new law passed in 2013 changed the ordinance retrospectively and made rape again a gender-specific crime which stated that a rape could be committed only by a male.

Most developed and modern democracies of the world accept rape as a gender-neutral crime. Among the developing nations, the best example before us is that of South Africa which recognizes gender neutral laws on sexual offences.

The edifice on which section 375 IPC rests is that a perpetrator is always a male. This notion is flawed in itself because rape can be committed by both the sexes. And through several types of research, the notion that erection and ejaculation happen only through consent is proven wrong, because unwilling sexual advances by both women and men can lead to erection and ejaculation which rescind that basic notion put forward by these people that erection and ejaculation suggest consent.

If a man who is not willing/ does not consent for sexual intercourse with a woman, the law has no remedy for him. Whereas if a man rapes another man then it can be covered under section 377 of IPC but for that the penetration should be done, similar is the case with one woman raping another. But the problem with this section is that it is very vague though it is not gender specific but the term unnatural sex has varied interpretation and it criminalises even voluntary i.e. consensual and willful sex.

This law was a result of the homophobic outlook of Victorian morality imposed on Indians during the British Raj. This law has been removed from Britain itself, but India is still following such an archaic law.

The need of the moment is that we need to change our outlook towards rape and other sexual offences because the desire of sex is present equally among both the sexes and the presumption of one being the victim and other being the perpetrator does not stand valid even on scientific scrutiny. Therefore it is required that India should make rape laws gender neutral and amend section 377 so that voluntary sexual act cannot be penalised but it should keep the basic provision of prosecuting nonconsensual sex of the same kind. We need to amend section 375 of IPC in consonance with the universally accepted definition of rape which is not gender specific because a rape can be committed by both men and women.

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  1. theredone

    Very well written article

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

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The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

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Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

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A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

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A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

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Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
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