The Supreme Court on Friday dismissed a petition seeking to declare the offences of rape, sexual assault, outraging of modesty, voyeurism and stalking in the Indian Penal Code as gender-neutral, saying they were meant to protect women and only Parliament can change the law.
“These provisions in the Indian Penal Code (IPC) are affirmative provisions to protect women. POCSO Act is gender neutral as it takes care of a child up to 18 years. But, these sections protect women and stand on a different footing,” a bench headed by Chief Justice Dipak Misra told Rishi Malhotra.
“Legislations come as a response to social and collective cry. These sections are victim-oriented and the Parliament has acknowledged a woman as the victim. We cannot ask Parliament to legislate,” Justice Misra added.
Malhotra, an advocate, had asked the court to examine the validity of the sections on the same ground as it agreed to hear a case against adultery. He said the word “man” given in the definition of the sections should be substituted with a “person” so that even a woman can be prosecuted.
“Parliament has recognised a degree of harm against women and framed this law. Similarly, in sexual harassment instances, Parliament felt it is the woman who is the victim and accordingly has recommended the law to deal with it,” justice DY Chandrachud, another member of the bench, said.
{{/usCountry}}“Parliament has recognised a degree of harm against women and framed this law. Similarly, in sexual harassment instances, Parliament felt it is the woman who is the victim and accordingly has recommended the law to deal with it,” justice DY Chandrachud, another member of the bench, said.
{{/usCountry}}To Malhotra’s contention that even a man could be stalked or molested, the bench said: “This is an imaginative situation. Also, its entirely open to Parliament to deal with cases arising out of the society.”
Malhotra said a reading of the concerned sections categorically demonstrates that all offences under the related provisions would always be committed by an accused who happens to be a “man” and the victim would always be a “woman”.
The bench also asked him how can a woman molest or stalk another woman.
“Have you ever come across a complaint by a woman saying she has been stalked by a woman?” the court asked.
Malhotra also claimed that section 354 of the IPC, which deals with assault of or criminal force against a woman with the intent to outrage her modesty, and its allied provisions do not stipulate any law to protect the modesty of a man.
“A man does not have any forum to go to if he is stalked,” he asserted.
When Malhotra called the provisions archaic, the bench said such an argument should not be made in the wake of “what’s happening these days.”
“You cannot call them archaic. Not at all,” the CJI responded.