ARE SECTION 375 AND 376 VIOLATIVE OF ARTICLE 14,15 AND 21?

SUBMITTED TO
Professor Ankit Baria
(Faculty- Constitutional Law-I)
United World School of Law (UWSL),
Karnavati University

SUBMITTED BY
Name: - Bhavika Lohiya
Roll No: - 05
Semester: -2 Section: -B

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Table of Content
Research Proposal …………………………………………………………….03
Research Question ……………………………………………………………03
Research Objectives ………………………………………………………….03
Hypothesis ……………………………………………………………………03
Research Methodology ……………………………………………………….03
Chapterization ………………………………………………………………..04
Introduction …………………………………………………………………….04
Definition of Articles and Sections……………………………………………05
How these sections are violative of Article 14, 15 and 21?...............................07
Society’s Perspective …………………………………………………………10
Conclusion …………………………………………………………………….12
Bibliography ………………………………………………………………….13

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 RESEARCH PROPOSAL
This research paper proposes to address violation of article of 14,15 and 21 of The Indian
Constitution by Section 375 and 376 of Indian Penal Code. Section 375 and 376 of IPC deals
with rape of only women by men, this is violative of right to equality and discriminates on the
basis of sex.
There are no provisions of rape of men, transgender and women by women. Historically, rape
was thought to be a crime just against women and no one thought it to be against men. Rape of
men is still a taboo and has a negative connotation in society. They are afraid that people will
doubt their sexual orientation. It is difficult for male victims, straight or gay, to report the sexual
assault in a patriarchal society.
So, this research paper proposes that there should be some provisions for men and transgender
rape which we will lead to gender neutrality and there will be no discrimination on basis of sex.

RESEARCH QUESTION
1. Are Section 375 and 376 of IPC violative of article 14,15 and 21?
2. Why rapes of men and transgender are not included in these sections?
3. Should gender neutrality be included in these sections?

RESEARCH OBJECTIVE
The objective of this research is that Section 375 and 376 of IPC should be made Gender neutral.
This research explores the phenomenon of a male rape and what is the perspective, view and
attitude of society towards the same.

HYPOTHESIS
Section 375 and 376 of IPC is violative of Article of 14, 15 and 21.

RESEARCH METHODOLOGY
In this Research Paper I have used Doctrinal Research Method, and this research paper is
descriptive in nature. The source of data is majorly secondary data, and this research paper is
descriptive in nature. For data collection National & international, books, magazines &
newspapers, Reports & journals prepared by research scholars, were referred.

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INTRODUCTION

Section 375 and 376 that is rape and punishment for rape doesn’t include man, transgender and
rape of women by women. It specifically talks about man who is the perpetrator and women as
the victim. Children are protected by POSCO Act and women are protected under Indian Penal
Code but an adult man and transgender have no provision under which they can go to the court
and ask for justice for sexual assault being committed with them.
It is for this reason that both perpetrator and victim enter a conspiracy of silence and why male
survivors often find, once their story is discovered, that they lose the support and comfort of
those around them. In the patriarchal societies found in many developing countries, gender roles
are strictly defined.
Rejecting the petition, a bench headed by Chief Justice Dipak Misra told petitioner Rishi
Malhotra, "These are affirmative provisions for the protection of women and in their favor. We
cannot agree with your argument. This appears to us like an imaginative petition. Actually, these
are valid classification."1
Crime has no gender and neither should law. Women can also commit crime for the same reason
men commit crime. The should not differentiate between the criminals and every person who has
committed an offence shall be liable to punishment under law.
Some people think that these laws have been made keeping in mind about women and are for the
protection of women to address the different abuse that women face and should not be made
gender neutral because it can be used against her.
The male survivors of rape face psychological and social trauma. There is an almost unanimous
social standard that only women can get raped. Men are strong and can therefore protect
themselves from male-assailants and can obviously not be raped by women or by anyone.

1
https://www.tribuneindia.com, last accessed on 06 may, 2019.

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Defining the articles and sections.
‘Criminal punishment has never been effective in elimination or reducing crime, yet society
believes, it has no other means to substitute for punishment’ – Norman Morris.
The Indian Penal Code deals with crime and punishment, fulfils this belief of the society.
Article 14 - the state shall deny to any person equality before the law or the equal protection of
the laws within the territory of India.
Equality is a basic feature of the Constitution of India and any treatment of equals unequally or
equals will be violative of the basic structure of the Constitution of India.

Article 15 (1) the state shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them.
(3) Nothing in this article shall prevent the state from making any special provision for women
and children.
Sex is sound ground of classification and although there can be no discrimination in general on
that ground the Constitution itself provides for separate provisions in the case of women and
children by clause (3) of article 15.

Article 21 no person shall be deprived of his life or personal liberty except according to
procedure established by law.2
The right has been held the heart of the constitution, the most organic and progressive provision
in our living constitution, the foundation of our laws. Everyone has the right to life, liberty and
the security of person. All the other rights add quality to the life and depend on the pre-existence
of life for their operation. Right to life is fundamental to our very existence. It does not mean
mere existence or continued drudgery through life. It has a much wider meaning which includes
right to live with dignity, right to livelihood, right to health, right to shelter, right to privacy, right
to reputation, right against rape, etc.

375. Rape — A man is said to commit "rape" who, except in the case hereinafter excepted, has
sexual intercourse with a woman under circumstances falling under any of the six following
descriptions: - First — Against her will.

2
M.P JAIN, “Indian Constitutional Law” Lexis Nexis, Gurgaon. (2010)

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Secondly — Without her consent.
Thirdly — With her consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.
Fourthly — With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes herself to
be lawfully married.
Fifthly — With her consent, when, at the time of giving such consent, by reason of unsoundness
of mind or intoxication or the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand the nature and consequences
of that to which she gives consent.
Sixthly — With or without her consent, when she is under sixteen years of age.
Explanation — Penetration is sufficient to constitute the sexual intercourse necessary to the
offence of rape.
Exception — Sexual intercourse by a man with his own wife, the wife not being under fifteen
years of age, is not rape.

376. Punishment for rape -

(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be
punished with imprisonment of either description for a term which shall not be less than seven
years but which may be for life or for a term which may extend to ten years and shall also be
liable to fine unless the women raped is his own wife and is not under twelve years of age, in
which cases, he shall be punished with imprisonment of either description for a term which may
extend to two years or with fine or with both: Provided that the court may, for adequate and
special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term
of less than seven years.3

3
R A Nelson’s, Indian Penal Code, Lexis Nexis, Gurgaon, 11th Edition (2016)

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How these sections are violative of articles 14, 15 and 21?
Section of rape and punishment of rape of IPC talks only about man who can be charged for rape
of woman and it doesn’t talk about rape of men and transgender by women and also it doesn’t
talk about rape of women by women. The section of sexual assault(rape) is gender specific in our
country. Article 14 and 15 states that any person should not be discriminated on the basis of sex
and shall be equal amongst law. But in this case of rape section is specifically saying about only
woman as victim.
As Section 375 of the Indian Penal Code states, rape is something that only a man can do to a
woman. There is no ground for adult male victims, much fewer female perpetrators. Although
child survivors of both sexes are covered by the Protection of Children from Sexual Offences
Act (POSCO) 2012, current rape laws leave out a large swathe of male victims, who cannot
come forward because of lack of legal recourse.
As a former director of a Lesbian Gay Bisexual Transgender counselling and sexual health center
in New Delhi, the dozens of such male and transgender survivors in the nation’s capital who
suffer sexual assault. They have also been well documented in legal cases, such as Naz
Foundation vs the Government of National Capital Territory of Delhi and in reporting by
domestic human rights organizations.
"Gender equality, equality between men and women, entails the concept that all human beings,
both men and women, are free to develop their personal abilities and make choices without the
limitations of stereotypes, rigid gender roles and prejudices set by the society. Gender equality
means that the different behavior, aspirations and needs of women and men are considered,
valued and favored equally. It does not mean that women and men have to become the same, but
that their rights, responsibilities and opportunities will not depend on whether they are born male
or female. Gender equity means fairness of treatment for women and men, according to their
respective needs. This may include equal treatment or treatment that is different but which is
considered equivalent in terms of rights, benefits, obligations and opportunities.
Rape has been held a violation of a person’s fundamental right of life guaranteed under article
21. Rife to life include all those aspects of life that go on to make life meaningful, complete and
worth living. In a judgement the Supreme Court held that “Rape is not only a crime against a
person(woman) but it is a crime against the entire society. It destroys the entire psychological
state and push her into deep emotional crises. It is only by her strong will power that she
rehabilitates herself in the society, which will look down upon her in derision and contempt.
Rape is, therefore, the most hated and heinous crime. It is a crime against basic human rights and
is also violative of the victim’s most cherished of the fundamental rights, namely, the right to
Life with Human Dignity contained in article 21.”4
The Supreme Court itself states that rape is the most heinous crime and hamper the right to live
with dignity but on the other hand it is saying that these (rape laws) are affirmative provisions for

4
Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922

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the protection of women and in their favor. But how it is special provision for the protection of
women under article 15 sub clause (3). Because a crime is crime whether done

by aa man or a woman how one can differentiate that she cannot be convicted because
she(woman) has been of the victim of this heinous crime since many decades. And what the men
who has faced the same heinous crime of sexual assault in the present scenario.
The right to equality and the right to live with human dignity of man have been violated by not
providing them justice of what they deserve by the virtue of law.
Male rape is a reality and can’t be denied by saying it as imagination. Male rape is far too
prevalent to be termed as a freak incident. And by not having gender-neutral rape laws, we are
denying many men justice than is commonly thought.
Right to equality says that any person shall be equal for the law and shall have the equal
protection of law.
Equality before law meaning rule of law. It means that no one is above law and that every person
is subject to the jurisdiction of ordinary courts.
Equal protection of the law means that like should be treated alike and not that unlike should be
treated alike.
By not providing equality before law in rape law we are denying men and transgenders their
right to equality.
Equality before law is a negative concept; equal protection of laws is a positive one. The former
declares that everyone is equal before law, that
no one can claim special privileges and that all classes are equally
subjected to the ordinary law of the land; the latter postulates an equal protection of all alike in
the same situation and under like circumstances.
No discrimination can be made either in the privileges conferred or in the liabilities imposed.
Article 14 of Constitution requirement of “everyone is equal before law, that no one can claim
special privileges and that all classes are equally subjected to the ordinary law of the land” and
“equal protection of all alike in the same situation and under like circumstances
Equality is one the magnificent corner-stones of the Indian democracy. It is worthwhile noting
that article 7 of the Universal Declaration of Human rights, 1948, declares that all are equal
before the law and are entitled without any discrimination to the equal protection of laws. The
rights to equality are the basic feature of the Constitution. The preamble to the constitution
emphasizes upon the principle of equality as basic to the Constitution. This means that any
constitutional amendment offending the right to equality will be declared invalid and
unconstitutional.

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Section 114A of the Evidence Act enables a court to raise a presumption that the woman who
was the victim of rape had not consented and that the offence was committed against her will.
The situation, however, has hardly improved. Conviction rates for rape are still lower than any
other major crime and the continue to argue even today that in rape cases the victim’s women,
rather than the rapists, were put in trial. A large number of women still fail to report rapes to the
police because they fear embarrassing and insensitive treatment by the doctors, the law
enforcement personnel.
Women fear the embarrassment done in the process in getting justice whereas when a man
sexually assaulted, he has no remedy or law under which can get justice.
Many countries have gender-neutral laws and some have partly neutral that is the perpetrator is
man and victim can be anyone. And some countries are totally gender specific laws.
Under section 497 of IPC, the offence of adultery can be committed only by a male and not by a
female who cannot even be punished as an abettor. As this provision makes a special provision
for women, it is saved by article 15(3). The Supreme Court has observed: sex is a sound
classification and although there can be no discrimination in general on that ground the
constitution itself provides for special provisions in the case of women and children by clause (3)
of article 15.5
The Rajasthan High Court observed:
The state may make laws containing special provisions for women and children, but no
discrimination can be made against them on account of their sex alone.6

5
Yusuf Abdul Aziz v. State of Maharashtra, AIR 1954 SC 321.
6
Mt. Choki v. State of Rajasthan, AIR 1957 Raj. 10.

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Society’s Perspective.
Patriarchy is the reason for the silence that is maintained when a man is raped. He avers, “If a
male alleges that female raped him, he is not seen as a “Real Man” because the stereotypical
patriarchal assumption of “men are superior and stronger to women” comes into the picture. The
same “male domination” and the notion of patriarchy is, in fact, the very reason males do not
come out of the closet to report rapes. Forman (1982) finds that about 90-95% of men who are
raped do not report it.
Men who have survived sexual assault as adults feel shame or self-doubt, believing that they
should have been “strong enough” to fight off the perpetrator. Many men who experienced an
erection or ejaculation during the assault may be confused and wonder what this means. These
normal physiological responses do not in any way imply that you wanted, invited, or enjoyed the
assault. If you were sexually assaulted, it was not your fault.
Legal reform is needed but that alone will not address the problem. It is important for society to
collectively recognize the reality of sexual violence against men.
Many incidents of sexual violence against men are under-reported. She had once worked on
prison reform and knew that jail is a place where sexual violence against men is routine but not
counted in the general national statistics. The experience of men and women is “a lot closer than
any of us would expect,”. For some kinds of victimization, men and women have roughly equal
experiences. we need to “completely rethink our assumptions about sexual victimization,” and
especially our fallback model that men are always the perpetrators and women the victims.
If a male alleges that female raped him, he is not seen as a “Real Man” because the stereotypical
patriarchal assumption of “men are superior and stronger to women” comes into the picture. The
same “male domination” and the notion of patriarchy is, in fact, the very reason males do not
come out of the closet to report rapes. Forman (1982) finds that about 90-95% of men who are
raped do not report it. Therefore, men too like females are afraid of reporting rapes. Their
masculinity is doubted upon; he is mocked and harassed by the society because he got “raped by
female”. It is seen as his fault and weakness.
Sexual violence is notoriously difficult to measure, and there is no single source of data that
provides a complete picture of the crime
Sexual assault can happen to anyone, no matter your age, sexual orientation, or gender identity.
Men and boys who have been sexually assaulted or abused may have many of the same feelings
and reactions as other survivors of sexual assault, but they may also face some additional
challenges because of social attitudes and stereotypes about men and masculinity.
Men who were sexually abused as boys or teens may also respond differently than men who
were sexually assaulted as adults. The following list includes some of the common experiences
shared by men and boys who have survived sexual assault. It is not a complete list, but it may
help you to know that other people are having similar experiences:
 Anxiety, depression, post-traumatic stress disorder, flashbacks, and eating disorders

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  Avoiding people or places that remind you of the assault or abuse
 Concerns or questions about sexual orientation
 Fear of the worst happening and having a sense of a shortened future
 Feeling like "less of a man" or that you no longer have control over your own body
 Feeling on-edge, being unable to relax, and having difficulty sleeping
 Sense of blame or shame over not being able to stop the assault or abuse, especially if
you experienced an erection or ejaculation
 Withdrawal from relationships or friendships and an increased sense of isolation
 Worrying about disclosing for fear of judgment or disbelief7

Sexual assault is in no way related to the sexual orientation of the perpetrator or the
survivor, and a person’s sexual orientation cannot be caused by sexual abuse or assault.
Some men and boys have questions about their sexuality after surviving an assault or
abuse—and that’s understandable. This can be especially true if you experienced an
erection or ejaculation during the assault. Physiological responses like an erection are
involuntary, meaning you have no control over them.

Sometimes perpetrators, especially adults who sexually abuse boys, will use these
physiological responses to maintain secrecy by using phrases such as, “You know you liked
it.” If you have been sexually abused or assaulted, it is not your fault. In no way does an
erection invite unwanted sexual activity, and ejaculation in no way condones an assault.

It can be hard to tell someone that you have experienced sexual assault or abuse. You may fear
that you will face judgment or not be believed. For many male survivors, stereotypes about
masculinity can also make it hard to disclose to friends, family, or the community. Men and boys
also may face challenges believing that it is possible for them to be victims of sexual violence,
especially if it is perpetrated by a woman. Below are a few suggestions on how you can support a
man or boy who discloses to you that he has experienced sexual assault or abuse.

7
https://www.rainn.org/articles/sexual-assault-men-and-boys accessed on 06 may, 2019.
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CONCLUSION
Laws related to rape in our Country are violating the basic fundamental right of equality and
right to life by not having any grounds under which a man can ask for justice. Rape is considered
as the most hated and heinous crime by the society but it is heinous just for women. If a man is
raped or forced to have anything which will be concluded as rape, he has no law under which he
can ask for redress and society will say that he is not capable of protecting himself.
Rape has been held to be a violative of a person’s basic fundamental rights. Everyone has the
right to life, liberty and the security of person. Right to life include all those aspects of life which
go to make a life meaningful, complete and worth living.
By not having gender-neutral laws of sexual assault we are denying many men who have faced
the heinous crime of sexual assault. Not only law is denying but the society is also not accepting
the fact that man can be raped.
We had gender-neutral laws just for 58 days by the virtue of Criminal Ordinance Act, 2013 but
as is was just for 58 days.
there is a dyre need of amending the rape provisions because these are discriminating between
man and woman on the basis of sex by saying that women have been the victim of this crime
since many centuries and it comes under special provision.

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BIBLIOGRAPHY

Cases
Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922
Yusuf Abdul Aziz v. State of Maharashtra, AIR 1954 SC 321.
Mt. Choki v. State of Rajasthan, AIR 1957 Raj. 10.

Books
M.P JAIN, “Indian Constitutional Law” Lexis Nexis, Gurgaon. (2010)

Website
https://www.rainn.org/articles/sexual-assault-men-and-boys
https://www.tribuneindia.com

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