New Delhi: A petition was filed in the Supreme Court (SC) on Wednesday challenging the constitutional validity of the provisions of the existing law on rape, on the ground that it was not gender-neutral.

Section 375 of the Indian Penal Code (IPC), 1860, only covers instances of rape of a woman by a man.

It does not take into account non-consensual sexual assault inflicted on a woman by a woman, on a man by a woman, on a man by another man, on transgender by another transgender or a man or woman.

The plea filed by non-governmental organization (NGO) Criminal Justice Society of India sought that the definition of rape under Section 375 be held ‘ultra vires’ for being ‘discriminatory and violative of Articles 14 (right to equality), 15 (prohibition of discrimination on grounds of religion, race, caste, sex..) and 21 (right to life and personal liberty) of the Constitution’. It is still to be heard by the court.

The petition noted the lack of acknowledgment of male and transgender victims of rape under the legal framework and the impending need of the same.

It relied on the September decision of the apex court decriminalizing sexual relations between consenting homosexual adults and contended that the court did not equate non-consensual carnal intercourse against the order of nature (between any two or more adults) as sexual assault and continued to deem it as an unnatural offence.

The Law Commission of India, in its 172nd report in 2000, had proposed that rape laws in the country be made gender neutral, by substituting the definition of ‘rape’ with that of ‘sexual assault’.

In 2012, the Union Cabinet through the Criminal Law (Amendment) Bill, 2012, had proposed to make rape a gender-neutral offence by replacing the term ‘rape’ with that of ‘sexual assault’.

This was superseded by the enactment of the Criminal Law (Amendment) Act, 2013, which widened the definition of rape to include acts other than forcible peno-vaginal penetration or sexual intercourse.

The Criminal Law (Amendment) Act, 2013 did not make any changes to include men or transgenders as victims under the law.

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