By Sahaj Garg
- What is Sexual Violence?
It would be be an understatement to label “Sexual Violence” as a fiery issue over the lands of India. From the darkest corners of the rural boundaries to the brightest of rooms of elites, sexual violence has its marks. The government, as it should, took steps and initiatives to address the issue. However, the grave concern seems to have shown a tinge of division in its implementation. But first of all, it is mandatory to understand “ Sexual violence.” Sexual violence encompasses any forced or coerced sexual act or attempted act, including those linked to human trafficking or directed at a person’s sexuality, regardless of the victim’s relationship with the perpetrator. The elements of gender, age, sexual orientation etc. are meaningless with respect to such a heinous deed. Despite that, there is significant research on crimes against women worldwide, but when it comes to similar offenses being committed against men, there is limited awareness and a big question mark.
- Societal Enforcement of Stereotypes.
The term “man,” in a general sense, has been associated with power and is deeply ingrained in the male behavior, appearance, and the regulation of their emotions in accordance with the social construct. “Men can take care of themselves” and “Men don’t cry” are few of the statements that hold the power to destroy the peace of millions of minds. Heavy expectations are imposed on men: to be brave, strong and capable of protecting and providing for themselves as well as their families. Men and women are different, even in terms of expression of feelings and thoughts. In a male-dominated society, it may be seen as “feminine behavior” for men to openly express their suffering, which can be embarrassing for them.
- Legislation of Indian Penal Code, 1860.
In the largest democracy of the world- India, the laws only provide protection to women against sexual harassment and rape, leaving men unguarded from such reckless behavior. The Indian Penal Code of 1860, which was referred to till July of this year, specifically mentioned “sodomy” under Section 377 but fell short of other provisions for men. A pivotal note should be made that sexual violence can occur between individuals of any gender, despite the sections 354A to 354D and Section 375 of the Indian Penal Code, which imply that only men can be perpetrators. The Indian Law conjectured that a female — both physically and mentally — is lacking the ability to abuse a male sexually. It is believed that it is a more grave crime to penetrate someone by force than making someone penetrate you and that rape is a gendered crime in the Indian society. The Penile Penetration Condition is a pre requisite for a rape charge in our country.
- Legislation of the Bharatiya Nyaya Sanhita
The Bharatiya Nyaya Sanhita (BNS) came into operation from 1st July 2024, bringing about significant changes to India’s criminal justice system as a replacement of the Indian Penal Code of 1860. When new laws are made to be implemented in a country, an expectation of it being better than the predecessors is present behind its creation. However, interestingly, or rather, unfortunately, it is seen that Bharatiya Nyaya Sanhita (BNS) has scrapped off the provisions of IPC Section 377, the only section that was responsible for some degree of protection to men and transgender individuals assigned male at birth, enabling them to seek justice within the criminal justice system with respect to sexual wrongs. Furthermore, IPC Section 377 addressed aspects related to bestiality, which are not covered in the new law. In their defense, the Bhartiya Nyaya Sanhita keeps the regulations of the Indian Penal Code concerning rape and sexual harassment, but it does not incorporate suggestions from the Justice Verma Committee (2013), including gender-neutralizing the crime of rape and criminalizing marital rape.
- Case Study
According to a recently published article in The Hindu, a 23-year-old was reportedly raped at a hotel in Chiluatal area of Gorakhpur, leading to the filing of a first information report (FIR) against four individuals by the Uttar Pradesh Police on June 14. The four accused were charged by the U.P. Police under Section 377 of the Indian Penal Code (IPC), which pertains to the rape
of a man, transgender person, or an animal, in addition to facing allegations under Sections related to extortion, theft, criminal intimidation, causing grievous hurt, and criminal conspiracy. This incident undoubtedly has sparked discussions about the implications of such cases in the absence of Section 377 or its equivalent in the new legal framework.
- In Conversation with Senior Advocates
In an interview with The Hindu, Advocate Karuna Nundy pointed out that during the landmark Supreme Court ruling in the case of Navtej Johar vs the Union of India, the Supreme Court did not entirely annul Section 377 but rather elucidated it more narrowly. This meant that non-consensual sexual relations between persons of the same gender and transgender persons would no longer be subject to punishment. However, the Section was kept in place as it was the only provision that addressed the issue of male, transgender, and animal rape. Ms. Nundy revealed that without Section 377 in the Bhartiya Nyaya Sanhita and no surrogate law in effect, men and transgender individuals would lack legal protection against rape. In addition to the list of concerns, Ms. Nundy also quoted that the ridding of Section 377 would also mean that men who have committed anal assaults on their spouses would not be held criminally liable if the new law is not revised by the government.
Senior advocate Anand Grover vocalized angst about the future of justice in such cases as well, citing that by “decolonising criminal laws,” the government eliminated Section 377 from the BNS Bill. This expurgation will result in a diminishment in the severity of the sentence once the crime is attested. Mr. Grover also mentioned in his interview that in India, the laws related to rape are not gender neutral. He pointed out that Section 376 of the IPC specifically addresses rape against women and he emphasized that with the non-inclusion of Section 377 in the Bharatiya Nyaya Sanhita, rape of men and transgender persons will no longer be deemed to be an offense after July 1. In these instances, one can only apply provisions concerning critical physical attacks, which carry significantly fewer legal implications than provisions related to sexual assault, he confirmed. Additionally, Mr. Grover denoted that this would place animals in a very precarious situation. “Animals already lack autonomy and will be even more vulnerable as perpetrators of animal rape will not be punished,” he remarked.
As per the diverse news reports, the incidents registered prior to July 1 under Section 377 will remain under the jurisdiction of the Indian Penal Code, while those filed after that date will not. They will be evaluated under the provisions of the new Bharatiya Nyaya Sanhita. Concurrent operation of two distinct legal frameworks will come into being and similar cases will result in different punitive outcomes.
Another Supreme Court lawyer Yashaswi S.K. Chocksey, stated that Section 18 of the Transgender Bill addresses sexual abuse, with the punishment ranging from six months to two years in jail. On the contrary, Section 377 carries a prison term ranging from 10 years to life imprisonment. He also expressed irk that the absence of Section 377 or an alternative in the new code exposes victims of such cases to the discretion of the police, in conversation with the journalist of The Hindu. “When Section 377 is invoked, the intensity with which the case is treated is much higher when compared to a case where Sections related to grievous hurt are invoked. It’s reflected in the urgency of arrests or the ease of getting bail. In the latter case, if the accused is not arrested, he can tamper with evidence and impact the course of investigation,” stated Advocate Chocksey.
Recently, some light was shed on the fact that an official from the Delhi Police, who participated in training sessions for the Bharatiya Nyaya Sanhita, informed a trusted media source that they were not provided with any guidelines on handling rape cases involving men and transpersons during the training sessions. This does not contribute to much but an embarrassment of the law making body of our country. He added that despite the concerns raised by a Parliamentary Committee regarding the exclusion of Section 377 or similar sections, the government chose to proceed without making any suggested changes. This decision will lead to various challenges for law enforcement bodies.
- Article 14- Right to Equality
One of the most basic and fundamental rights provided to the Indian citizens is the “Right to Equality” , which is guaranteed in Article 14 of the Indian Constitution, yet this right is often violated due to the lack of legislation in innumerous cases. In this context, failing to address sexual violence against men and the exclusion of men from laws concerning rape. While the Indian Judiciary and society strive for gender equality, the absence of gender-neutral laws on sexual harassment or rape implies a violation of the Right to Equality. The Indian justice system’s commitment to protecting women from sexual violence is praiseworthy, but it is unfair to disregard the plight of men who experience sexual violence. This biasness needs to be halted to ensure equality in its truest sense to every Indian citizen, irrespective of their gender, caste, religion and social status.
A saddening truth which was brought forward by the media is that when Public Interest Litigations (PILs) sought to establish rape as a gender-neutral crime, they faced opposition from various women’s groups. In an interview with India Times, international human rights lawyer and activist Vrinda Grover stated that there are no cases of women raping men. She expressed her belief that men are not experiencing significant issues of sexual violence compared to women. On the other hand, she highlighted that approximately two out of five victims of domestic violence are men, challenging the common perception that only women suffer from violence at the hands of their spouses or families. This shows how important it is to provide legal protection to men from sexual and physical abuse on an urgent basis.
- Misuse of rights and legal protection
Though men in the cruel situations of sexual abuse is still highly underrated and rarely talked about in India, in 2004, a Bollywood Movie called Aitraaz depicted a rare case where a woman filed false sexual harrasment charges against a man because he refused to give to her sexual demands. The number of such cases have touched the skies in today’s times. Since the law provides protection to women to a great extent and on the contrary there is no such provision for the men, some women have started to misuse those privileges. The law makers need to wake up from their slumber and take measures to curb such activities without any further delay.
- Statistics and Data
According to the 2022 reports of the National Commission for Women, about 1.4% of Indian men had experienced sexual harassment, and a hike of 500 cases of sexual assault on men were reported in the year, as compared to 2500 cases in the previous year. In a 2023 survey by the Centre for Civil Society, close to 18% of Indian adult men polled
said they experienced pressure or coercion to engage in marital
relations. Of this percentage, 16% attributed the pressure to female
perpetrator, while 2% stated a male perpetrator was responsible. The
Economic Times conducted another survey, which found that 29 to
43% of participants acknowledged being harassed by female
colleagues. Immediate actions are required to reduce these figures to
an ideal zero.
- Suggestions
Some suggestions and measures which can improve the conditions of men in abuse cases are that Gender-neutral laws must be implemented and gender-specific laws be abolished in the Bharatiya Nyaya Sanhita. Men should be included in the Sexual Harassment in the Workplace Act 2012. Awareness of sexual violence against men should be spread through campaigns, reports, articles, etc. Just as there is a separate court for women, Mahila Adaalat, there should also be a separate court for men. Separate commissions should be established specifically to investigate crimes against men, and the same should be done for women. Male and female offenders of sexual violence must be punished equally and without discrimination. The government should take necessary actions to prevent women from misusing their legal privileges and abusing men.
- Conclusion
There is continual research that delves into sexual violence against men, and multiple countries have implemented laws addressing this issue. It’s consequential for Indian courts to recognize and address sexual violence against men by enacting appropriate legislation to safeguard them from such crimes. When injustices are inflicted upon women, people speak up, so why not do the same when the victim is a man? Equality before the law is essential, and there should be no bias in the pursuit of gender equality.
Justice Krishna Iyer stated that while a murderer kills the body, a rapist kills the soul. Every day, men fall victim to rape in India. It is crucial for the public to acknowledge this reality and stand behind male survivors of sexual violence when they come forward with their cases. Both male and female convicts of sexual violence should face equal punishment under the law for this heinous crime.
- References:
- https://www.thehindu.com/news/national/gang-rape-of-up-man-highlights-need-for-sectio n-377-in-bns-bill/article68320575.ece
- https://www.kelphr.com/blogs/bharatiya-nyay-sanhita-and-sexual-harassment-at-workpla ce/#:~:text=Notably%2C%20the%20provisions%20of%20IPC,within%20the%20crimina l%20justice%20system.
- https://prsindia.org/billtrack/the-bharatiya-nyaya-second-sanhita-2023 4. https://www.legalserviceindia.com/legal/article-4685-sexual-violence-against-men-in-ind ia.html
- https://www.linkedin.com/pulse/sexual-harassment-men-hidden-epidemic-mohd-varis-ma nsoori-74qlf#:~:text=Men’s%20sexual%20harassment%20is%20a,documented%20in%2 0India%20in%202022.
- https://www.caseiq.com/resources/sexual-harassment-against-men-workplace/ 7. https://www.nsvrc.org/statistics
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