Libertatem Magazine

Indian Rape Laws- Desolated and Vacuous in Disposition

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Law is meant to protect people and keep them under the cape of justice irrespective of their gender but somewhere or the other sexism prevails and this cape of law has holes and voids. Gender biases have eaten up the main essence of Right to life and Liberty that is one of the Fundamental Rights, Article 21. There are still some genders and communities who are facing utter human dignity crisis and threat, just because of their sex. Adequate protection is not granted to them and due to which they can be called as mute victims as they suffer a lot but are ignored conveniently by the law and also by the society, they are left unheard. This vague nature of law is creating huge distortion in the minds of people and is leading to a fear, fear of not getting proper justice.  

Here, I will be talking about two such genders, males and transgenders. Terminologies like modern and evolved for the world wherein we live are contrary to the core as is actually a world full of people who are holding stereotypical mindset wherein, they over-generalize belief about a particular gender and undoubtedly law has enhanced this belief. I would not deny that females have had a history of humiliation and oppression in male dominant society, they for a long period of time have faced burden of inequalities. They were kept in four walls assigned only house chores as they were considered weak. 

Scenario to some extent has changed in the modern world wherein the mindset of people has evolved in a bit voguish way. Now females in a way are more empowered to have their own space in the society, they get adequate support from the government and several protection policies are implemented to grant them the status of dignity in the society but what about males and transgender communities. They are still fighting for their rights and dignity and one fight is regarding the rape laws. Truly, Rape laws in India are highly ill-defined. They are invisibly or in quite a visible way, leaned towards one group or gender and in majority of cases truth in buried inside the coffin of law. 

Male-on-male rape and Transgender rape status in Indian Context

Male-on-male rapes have been highly stigmatized in India. According to various surveys, male rapes are common but fewer than 1 in 10 male-on-male rapes are reported and being highly devastated, same is the case with rape cases involving transgender. These are hidden rapes that are never talked about as males are generally seen through the lenses of being an accused, not victim. But why can they not be a victim? This is a question unanswered and law has made it more difficult to answer this question. Law is somewhere at fault as if we look at the definition of Rape under Section 375, it gives a clear reflection of male as an accused and female as a victim, the definition is very narrow and it holds no ambit for other genders that is it has completely and clearly excluded males and transgender victims of such heinous crime.  This definition also reflects inequality which is completely against the Right to Equality that is Article 14 of the Indian Constitution. Males and transgender are no less than struggling in the current times because due to the law extreme powers and protections are granted to one gender ignoring the fact that it’s hampering the rights of other genders. Women have fought a lifelong battle against discrimination but the situation cannot be seen as common at all times, now males and transgender are fighting a battle for their rights, the table has turned with the circle of time. Almost half of the rape reports filed are false, this is what the law has led to. Misuse of the protections is the result. 

Now, males are subjected to humiliation and abuse, both physically and psychologically, but the dilemma is that they cannot event stand up-front against this exploitation of their status and reputation, they continue to suffer silently due to the unease of being judged in a wrong way as this fact is often sidelined that women can be as brutal as man in harassing. On the other hand, transgender also have a history of isolation, alienation and marginalization, plus they had to fight a lot to even get a basic recognition in the eyes of law, after NALSA vs. Union of India (2014) case they were said to be termed as third gender and also were given the status of minorities, they got reservations in jobs, education and other amenities with Article 14. 

Also, the right to self-perceived gender identity was recognized as a Fundamental Right under articles 19 and 21 of the Constitution by the judgment of this case, but no sort of protection was guarded under Section 375. If we talk about the Transgender Persons (Protection of Rights) Act 2019, it provides protection to transgender against all sorts of offenses be it physical or sexual abuse but the punishment stated for the same is a minimum of six months and a maximum of two years of imprisonment with a fine, which as compared to the punishment stated under Indian Penal Code is very minute. The punishment of rape under Section 376 talks about rigorous imprisonment of either description for a term or period which shall not be less than ten years, which may extend to imprisonment for life, and shall also be liable to fine. This is a broad difference that exaggerates the myth that males and transgender can never be vulnerable, but in reality, they are. 


It cannot be said that they are not raped or sexually harassed, definitely, they are, but the disturbing thing here is that they are not that free to register an FIR against the accused as they lack that sort of support from the law’s perspective. But the question here is that how long will these genders be squeezed under the fist of this one-sided and ill-equipped law. In conclusion, their sufferance can end by making gender-neutral rape laws, which would support a free and transparent investigation, the same was first pointed out in Sudesh Jhaku vs. K.C. Jhaku wherein the Delhi High Court said that the protection of the law against sexual assault must be extended to men as well and in order of the same, Criminal law Amendment Bill 2019 was proposed for the first time providing the gender-neutral definition of rape but unfortunately the same was not able to receive the legal sanction amidst the hassled situation during Nirbhaya Rape Case.

There is absolutely no doubt that social factors affect law to a greater extent but the law is somewhere crucial to shape the minds of people in an unbiased way and the law is somewhere failing to do so. Transparency of law can never be established till the time there is the transparency of thoughts, the thoughts should be free from all sorts of vicious barriers and there should be only one fight, fight against wrong discounting the gender of a person. The true meaning of equality can only prevail when all the genders are given equal importance in the eyes of law. Law should evolve and transform over a stretch of time and as times are undergoing a major change in the present context, the law should adjust accordingly keeping all the facets in mind. The rape punishments according to my belief should be equated to all sorts of genders be it male, female, or transgender. Rape is not a common offense, it’s one of the most barbarous and grievous offenses that impact life irrespective of anyone’s gender, so why is the law discrimination? 

I remember seeing one of the interviews of Pooja Sharma, wherein she was even not able to cry onto what all she faced, just because she is a transgender. I could feel that trauma of not being able to release the pain within and I wish that even law could empathize and feel their pain. The punishment for such an offense should be as harsh as the offense itself, the guilty should undergo the same pain and agony. No gender should face exploitation just under the fist of the law.

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