Criminal law amendment bill

The criminal law amendment Bill was signed into force by the President of India on 26th February 2019. The Bill further aims to amend the provisions of the Indian Penal Code, 1860, The Code Of Criminal Procedure,1973 and The Indian Evidence Act,1872.

The main objective of the bill is to recognize and cater to the long due recognition and to make our Indian criminal law inclusive of the third gender. It further needs to acknowledge the existence of sexual crimes against the men as well. Earlier, Section 377 of our Indian Penal Code was the only provision that recognized the existence of any form of sexual relationship which deviated from the conventional norm of heterosexuality between the binary sexes as accepted by our society. However, it criminalized such relationships as being ‘against the order of nature’ and did not take into consideration the simple concept of consent. Primarily due to this non-inclusiveness of laws against sexual violence, the third gender and the male population of the country suffers abuse, aggression, and exploitation at the hands of our justice system itself.

The observations in the two landmark cases; Indian Criminal Justice Society vs. UOI and The National Legal Service Authority vs.UOI, by hon’ble Supreme Court of India, paved the way for the aforementioned amendments. 

National Legal Service Authority vs. UOI, 2014

Issue:

The case was concerned with the issue of whether non-recognition of trangenders as gender in our Indian laws contradicts and violates the fundamental rights provided to each and every citizen of India under Article 14 (right to equality before law), Article 15 (right against discrimination), Article 16 (right of equal opportunities) and Article 21 (right to life). 

Observation:

The court acknowledged that the third gender in India has faced social discrimination, exclusion, and exploitation from the eighteenth century. They have been denied the basic privilege of participation in social and cultural occasions in life. Since they are not recognized as either male or female nor have they been given the status of the third gender, this community has been suffering from exploitation and social ostracism for a long period of time.

The court further stated that gender identity is the most basic and integral aspect of self-determination, dignity, and freedom. Rights have to be protected irrespective of biological sex, implied gender roles or genitals. 

The court declared that numerous initiatives were required by both the center and the state government to secure and reinforce these fundamental rights of this class which has been violated blatantly from the time immemorial.  

The court held that the right to choose one’s gender is crucial to lead a life with dignity and hence falls within the scope of Article 21 of the Indian Constitution. Since the judicial pronouncement in the Maneka Gandhi’s case, the scope of Article 21 has proved to be multidimensional and includes each and every aspect which contributes towards making the life of a person meaningful and dignified.

Further, Article 14 of our Constitution states that,

 “ The state shall not deny any person equality before the law or equal protection of the law within the territory of India”. ‘Any person’, therefore, means every human being irrespective of their gender or sex.

Additionally, the Supreme Court also observed that Article 15 and Article 16 of our Constitution lay down a number of grounds on the basis of which a person shall not be discriminated, one of those grounds is ‘sex’. This implies that our constitution aims at addressing and prohibiting sexual discrimination, thus reinforcing the idea that fundamental rights are not to be made available differently for the sole reason of not conforming to the generalization of the binary genders.

Article 19 of our constitution protects the right to freedom of speech and expressions, hence expressing one’s gender preferences and gender identity through various expressions of speech, dress, performance, conduct is well protected under our grundnorm. 

On the basis of the above-mentioned reasons and grounds the court has issued the following directions:

1. The center and the state governments should grant legal recognition of the gender identity as male, female and transgender. This full recognition shall and should be granted even in the absence of any pre-existing statutory provisions.

2.  Transgender persons should be recognized as socially and educationally backward classes and should be granted reservations.

3. The center and the state government were also directed to establish separate HIV sero-surveillance centers for transgender persons.

4. The court further urged the center and the state governments to build separate public washrooms for transgender persons.

5. The court earnestly directed the center and the state governments to take up public awareness activities and gender sensitization activities to create a positive atmosphere of acceptance towards previously socially outcasted transgender population.

Criminal Justice Society vs. UOI

Criminal justice society is an NGO that filed a PIL( public interest litigation) in the Supreme Court of India seeking amendment of the rape laws with an objective to make them gender-neutral. The PIL relied on the judgment given by the court in the case of Navtej Singh Johar vs. UOI, in which section 377 of Indian Penal Code, 1860 was declared unconstitutional by a unanimous decision. 

Through this PiL, an impending need to recognize rape as a criminal offense, and not only a female-centric crime, was duly highlighted. 

Even though the Criminal Law Amendment Act of 2012 widened the scope and definition of ‘rape’, it failed to recognize and include men and trangenders as the victim of the crime.

This PIL, although, was duly dismissed by The Supreme Court on the grounds of this being a matter of legislative body, i.e The Parliament, however, the court did not fail to find merit in the plea of gender-neutral laws and desired that the parliament consider the same.

KEY AMENDMENTS 

1. The term ‘modesty’ is duly explained under Section 8A, which has been inserted in lieu of this amendment. 

The term modesty under the Amendment Act is defined as;

“Modesty is an attribute which attaches to the personality with regard to commonly held belief of morality, decency, and integrity of speech and behavior, in any man, woman or a transgender.’’

2. Amendment to Section 354-354D, pertaining to offenses of outraging the modesty, sexual harassment, criminal intent to disrobe, voyeurism and stalking have been amended to such an extent that the gender of the victim and the accused has been made irrelevant. 

3.Amendment to Section 375; words like ‘man’ and ‘woman’ have been replaced with ‘any person’ with an intent to effectively make the rape law gender-neutral.

However, sub-clause ( fourthly) has not been amended, according to which consent under the impression that the man is her husband has not been amended to the same effect. 

4. Insertion of Section 375A which provides the definition of the offense of sexual assault ;

“ intentionally touches the genitals, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person, without the other person's consent, except where such touching is carried out for proper hygienic or medical purposes; or

usles words, acts or gestures towards another person which creates an unwelcomed actionable threat of sexual nature or results in any unwelcome advance “

5. Amendments to Section 376A, Section 376C, and Section 376D were introduced to make the crimes listed under these sections gender-neutral except for the sub-sections pertaining to the rape of women and children in custody. 

The amendments under this Bill holistically includes every person who may be subjected to the heinous crimes of sexual assault, sexual harassment, and rape. However, it is of utmost importance that these amendments be effectively implemented to give effect to the intentions and objectives of this Bill.