Crime has no gender. It is an archetypal truth. But so deeply is the concept of gender stereotypes ingrained in our society that even courts can’t look at crime without diluted lenses. The Allahabad High Court has come up with a refreshing and perception-changing understanding of gang rape law.
Facts of the Case
In June 2015, a person registered an FIR on some individuals under Sections 363 and 366 of the IPC. Section 363 prescribes a 7-year punishment for kidnapping, while Section 366 extends it to cases where women are kidnapped or abducted to be forced to marry or are forced/seduced to illicit intercourse. According to the complainant, his 15-year-old daughter was kidnapped.
Thankfully, the police acted swiftly and got hold of the accused. In her statement to the police under Section 164 of the CrPC, the child said that a woman was also involved in all of it. Using Section 319 of the CrPC, an action against the woman was initiated.
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Can a woman be charged for gang rape?
More charges were added against the accused. These include Sections 376D and 212 of the IPC. Section 212 imposes a sentence of up to five years in prison for intentionally concealing information about a crime. 376D is more heinous as it involves gang rape.
When the matter reached Allahabad High Court, the question was to decide whether the woman could be charged for gang rape on it. The woman’s lawyer argued that a woman can’t even have the intention to rape. For this, he relied on precedents established in the Priya Patel and Hemraj Cases to do so.
According to the lawyer, even a broad explanation given under Section 376(2)(g) would not be sufficient to prosecute her for gang rape. It basically says that even if one person raped the woman while a group planned for it, the whole group would be prosecuted.
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High Court’s word-by-word reading of provisions
The Allahabad High Court refuted the argument by breaking down Sections 375 and 376 in a word-by-word manner. The Court did state that no woman can be charged with rape under Section 375, simply because the current definition of rape captures only males as perpetrators and females as victims.
But it does not hold true for Section 376D. The reason behind it is that the Section uses the word “persons” as perpetrators of crime and not men or women. The Allahabad High Court said that the essence of Section 376D is the joint liability of every person involved in furtherance of a common intention. Gender neutrality is not even the question since the word “person” used in Section 376D is already a defined word under Section 11 of the IPC. Section 11 is gender neutral, and by extension, Section 376D is also gender neutral.
The Court also referred to the Oxford dictionary’s definition of the word “person.” The dictionary defines it as “an individual human being,” “a man, woman, or child,” or “the living body of a human being.” Laying it out, Court held that, “if she facilitated the act of rape with a group of people then she may be prosecuted for Gang Rape in view of the amended provisions.”
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Time to shed the patriarchal mindset
With this judgement, the Court has again opened the debate for gender-neutral rape laws. More than 75 countries have gender-neutral rape laws. The 172nd Law Commission had recommended the same for India in its 2000 report. The Justice Verma Committee, constituting itself after the Nirbhaya Rape Case, had also recommended the same. But the change could not see the light of day.
Meanwhile, as our judiciary continues to accept concepts that defy gender binaries, there is a need for a shift in the patriarchal mindset. It is shocking that the rape laws do not provide relief to a person who does not identify as a woman. It is literally an attack on the fundamental right to live with dignity for people who are not women. Its effects on men, a forgotten gender, are already out in the open.
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