The Delhi High Court has sought the government’s response on a plea seeking to declare the “gender-specific” sections related to rape and its punishment under Indian Penal Code (IPC) as unconstitutional.
A Bench of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar asked the government to reply within three weeks and posted the matter for further hearing on October 23.
Section 375 of the IPC deals with rape committed by man, while Section 376 lists the punishment for the offence.
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Constitutional test
“IPC Sections 375 and 376 in the current form, which are gender-specific and not gender-neutral, don’t secure males and thus don’t stand the constitutional test and fail in right to privacy,” the petition, filed by activist Sanjjiiv Kkumaar, said.
He added that as per a recent Supreme Court ruling on right to privacy, both males and females have equal protection of law under the Constitution.
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“Similarly, if the [rape] victim is male, he has right to equal protection, equal to that of a female in like circumstances,” the plea said, adding that 63 countries have gender-neutral rape laws.
Right to privacy
“After the right to privacy ruling, where consent and bodily integrity of each citizen is now a fundamental right as part of the freedoms and intrinsic part of right to life and personal liberty under Article 21, females and males both have equality before the law and equal protection of law under Article 14 guaranteed by Part III of the Constitution,” the petition said.
Mr. Kkumaar said the country had a gender-neutral rape law — The Criminal Law (Amendment) Ordinance, 2013 — for a brief period of 58 days and that it was repealed after protests from certain quarters of society.
Ryan case
The plea also referred to the recent murder of a boy at Ryan International School in Bhondsi, allegedly by a 42-year-old man following a failed sodomy attempt.
It said that boys under the age of 18 years are protected under Protection of Children from Sexual Offences Act (POCSO) but “are robbed of their rights” once they attain majority.
Notion of patriarchy
“It becomes very difficult to accept that there is a single reality in rape, that is, men rape women and ... this act has a meaning so different for men that it cannot be labelled as rape,” it said.
The petition also claimed that the notion of patriarchy was the reason why men refused to come out in the open to report sexual crimes against them.
“If a male alleges that a female raped him, he is not seen as a real man because the stereotypical patriarchal assumption of men are superior and stronger than women comes into the picture,” it said.