The case was transferred to CID for further investigation with immediate effect and Suraj Revanna is now in CID custody until July 1, 2024.

Now what if, the same incident came out after 15 or 20 days, that is post July 1, 2024? Ideally nothing should be different, and Suraj Revanna should be charged with the same sections.

However on July 1, 2024, is the day when the new criminal acts come into force. The Bharatiya Nyaya Samhita, 2023 (BNS) has replaced the Indian Penal Code, and interestingly enough has scraped out Section 377 completely. The new law only allows for the concept of rape to be limited to a situation where the perpetrator is a man, and the victim is a woman. All other cases where the victim is a non-cis gendered woman, then would find solace in the section prescribed for grievous hurt, which is a bailable offence with the term of imprisonment extendable for up to 7 years.

Rape laws post July 1, 2024

Section 377 of the IPC, which criminalized “unnatural offences,” has been a controversial provision. The Supreme Court in the case of Navtej Singh Johar v. Union of India, read down Section 377 and did not strike it down. It decriminalized consensual sex between adults of the same gender and Section 377 remained in the IPC for addressing non-consensual acts and bestiality.  The new BNS legislation, however, has completely omitted this section. Section 63 which deals with rape, defines it way in a way where only women can be the victim and only a man can be a perpetrator. Under this section the term of imprisonment cannot be less than 10 years and can extend up to life imprisonment.

The rape laws in India are not gender neutral and the rape of men and transgender persons will become a non-offense post July 1. Men will be able to find relief in Section 114 and 115 of the BNS that deals with grievous hurt. Under this section the term of imprisonment can extend up to 7 years. The transgender community can find relief in the same sections of the BNS and under Section 18 of the Transgender Persons (Protection of Rights) Act, 2019. Under this section the term of imprisonment shall not be less than 6 months and can extend up to a whopping 2 years. Anyone who rapes an animal, will walk away scot-free!

Article 14- the right to equality

The proposed changes to India’s rape laws, with the complete omission of Section 377 and the limitations of Section 63, represent a blatant disregard for the fundamental right to equality enshrined in Article 14 of the Indian Constitution. This revision falls short on numerous counts, leaving a significant portion of the population vulnerable and perpetuating a dangerous misconception about rape.

Article 14 guarantees equality before the law and prohibits unreasonable discrimination. The current framework, which defines rape solely as an act against a woman by a man, creates an arbitrary classification based solely on gender. In the case of State of West Bengal v. Anwar Ali Sarkar (1952), the Supreme Court of India held that before passing any act or order which differentiates between two or more sets of people, the following conditions must be fulfilled-

• It should be based on an intelligible differentia that makes a distinction between one group of people and another.
• The differentia must have a reasonable connection with the purpose sought by the law. This classification fails the “intelligible differentia” test.

There is no logical reason why the experience and trauma of rape should differ based on the victim’s sex or the perpetrator’s gender. Rape is a horrific violation of bodily autonomy and dignity, regardless of the parties involved. Excluding men and transgender individuals from the definition of rape victims creates an “intelligible arbitrariness” that violates their fundamental right to equality.

Relegating the rape of men and transgender persons to the offense of “grievous hurt” under Section 114 and 115 of the BNS trivializes the gravity of the crime. The maximum sentence under this section (7 years) pales in comparison to the potential life imprisonment for rape under the previous Section 63. This disparity fails to recognize the psychological and physical trauma associated with rape. It sends a message that the violation of a man or transgender person is somehow less severe, perpetuating harmful stereotypes about masculinity and reinforcing the myth that men cannot be victims of sexual assault.

Many countries, including Nepal, South Africa, and New Zealand, have adopted gender-neutral rape laws. These nations recognize that rape is a crime against all individuals and ensure an equal level of protection for everyone, regardless of gender. India needs to follow suit and bring its laws in line with international best practices.

Conclusion

The proposed changes in rape laws are a step backward in the fight against sexual violence. They perpetuate harmful stereotypes, deny justice to a significant portion of the population, and violate the fundamental right to equality. India needs to enact comprehensive gender-neutral rape laws that recognize the lived experiences of all victims. This includes ensuring appropriate punishment for perpetrators, providing support services for survivors, and tackling the social stigma that surrounds sexual assault. Only by acknowledging that rape is rape, irrespective of the victim’s gender, can India create a society where everyone feels safe and protected.

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The Odisha High Court has opined that the law holding that having sexual intercourse on a false promise to marry amounts to rape, “appears to be erroneous”.

Justice SK Panigrahi has denied the bail application filed by a person accused of raping a woman after getting involved in a physical relationship with her on the false pretext of marrying her.

The survivor alleged that the applicant/accused caused her abortion twice, by giving her medicines. Thereafter, the accused denied marrying her even after her parents contacted his family get their consent for marriage. The said proposal was denied and in view of this, the family of the woman fixed her marriage elsewhere.

Further, on April 26, 2020, the accused posted their personal photographs using a fake account on Facebook and used a caption stating that she is of ‘bad character’. As a result of this, her marriage was broken.

Thus, an FIR was registered under sections 376(1) (punishment for rape), 313 (causing miscarriage without woman’s consent), 294 (obscene acts) and 506 (punishment for criminal intimidation) of the Indian Penal Code and section 66(E) (punishment for violation of privacy) and 67(A) (punishment for publishing or transmitting of material containing sexually explicit act, in electronic form) of the Information Technology (Amendment) Act, 2008.

While hearing this matter, the court analysed the relationship between section 90 (Consent known to be given under fear or misconception) and section 375 (rape) of the Indian Penal Code. It observed that even though the judiciary has dealt with the use of such concepts, however, “a certain viewpoint has not been reached and still under the shroud of confusion.”

Justice Panigrahi reportedly said, “There is a need for the amendment in the legislation defining what constitutes ‘sexual intercourse’ with the prosecutrix on the ‘pretext of a false promise of marriage’. As in the present scenario, the law on this matter lacks clarity for the conviction of the accused.”

The Single-judge Bench then referred to Anurag Soni vs. State of Chhattisgarh (2019), wherein the Apex Court had held that if an accused from the very beginning has given a promise of marriage without any intention to fulfil that promise, then consent for a physical relationship would not amount to valid consent.

The High Court also opined, “The rape laws should not be used to regulate intimate relationships, especially in cases where women have agency and are entering a relationship by choice. However, it needs to be brought forward that many of the complaints come from socially disadvantaged and poor segments of the society and rural areas, women from these sections are often lured into sex by men on false promises of marriage and then dumped as soon as they get pregnant. The rape law often fails to capture their plight.”

The court also noted that section 375 of the IPC, fails to address the issue of consent for sexual act on the pretext of marriage. Hence, the court said, “the automatic extension of provisions of Section 90 of IPC to determine the effect of consent under Section 375 of IPC deserves a serious relook. The law holding that false promise to marriage amounts to rape appears to be erroneous, however, the plight of the victim and the probability of the accused tarnishing the dignity of the victim and her family need to be looked at while deliberating on the question of bail.”

Since the FIR showed prima facie specific allegations against the applicant/accused, the Court denied him bail after noting that there is a possibility of the survivor’s family being coerced into withdrawing the case or repetition of similar type of offence.

The judgment may be read here:

Related:

Agra: Couple waylaid, woman gangraped on Holi evening
Uttar Pradesh: Three men sentenced to death for teenage girl’s rape, murder

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