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.
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.