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Gender Neutrality: An Inherent Conflict Between POCSO And IPC

The CLAA has also brought an amendment in the POCSO by amending section 42 of the Act. The purpose of section 42 is to give the general law of IPC an overriding effect over POCSO in the matters of punishment since IPC provides for greater punishment for rape. The only caveat being that the act or omission must constitute an offence under IPC as well as the POCSO.

For instance, for penetrative sexual assault the minimum punishment prescribed under POCSO is 7 years’ imprisonment, whereas the parallel provision under IPC prescribes a punishment 10 years (if woman is between 16-18 years) or 20 years (if a woman is under 16 years of age). In such cases, the offender will be sentenced in accordance with the punishment prescribed by IPC. The amendment in POCSO was necessitated due to the inclusion of new offences in IPC, added by the CLAA. In order to extend the enhanced punishments in IPC to the cases falling under POCSO, section 42 of POCSO was amended and newly created offences (section 376AB, 376B, 376DA, 376DB) were substituted.

But in the process, the CLAA has failed to take into account the fact that POSCO is a gender-neutral law, whereas the legal framework of rape under IPC is gender-specific. To put it in context, POCSO uses ‘person’ in its reference to victim and perpetrator; whereas, section 375, 376 and other successive provisions uses the word ‘woman’ and ‘man’ in reference to victim and perpetrator respectively. This will create a situation where those guilty of committing penetrative sexual assault on a girl below 12 years would get minimum life imprisonment or the capital punishment, by virtue of section 376AB read with section 42, POCSO.

But a lesser punishment (10 years or life imprisonment) will be given for committing penetrative sexual assault on a boy, since there is no parallel provision for rape of men in IPC. Same inconsistency will also prevail over gang rape related provisions, where the same offence committed against a boy and a girl will be treated differently. The CLAA to the extent that it discriminates between sexes in the matter of punishment fails to satisfy the equal protection clause and is, therefore, violative of article 14 of the constitution.

Moreover, it is also important to note that it is in the interest of justice that a public discourse be initiated for introducing gender neutral criminal laws with respect to sexual offences, with appropriate mechanisms to check their misuse. Countries around the world have made suitable amendments in their criminal statutes in order to incorporate gender neutral provisions. There is an emerging consensus about the high prevalence of male and transgender victims of sexual offences.

The criminal law is one of the most vital link which defines the relationship between a state and its citizens. Therefore, it is desirable if this relationship is defined precisely and clearly in the penal statutes. The criminal law which is seen as the most potent State instrument restricting individual’s fundamental right to life and personal liberty, must be free from inconsistencies and ambiguities.

However, of late vagueness and ambiguity appears to be the first hand rule of the present day legislative interventions. The three aforementioned qualities of a good code65 which Macaulay valued have been given a go by when it comes to legislative drafting. The ambiguous phraseology used in criminal laws reflect their want for precision.

Apparent inconsistencies in criminal laws of India makes it difficult for ordinary citizens and even legal experts to understand the scope of a particular provision. On the one hand, IPC and its amendments continue to be subject to constant judicial interpretation borderlining law-making due to slow progress in law reforms. Whereas, on the otherhand, the legislature and the executive continues to sleep on crucial law reform recommendations made by expert bodies and committees.

Thus, the IPC and its recent anti-rape amendments continue to ail from ambiguities, inconsistencies, and legislative apathy towards its reformation. A hasty legislation, drafted with an intent to calm public impulse, may augur well for optics and political rhetoric. However, in the hindsight it compromises the quality of law reforms, and clogs the judicial system with petitions praying for an authoritative declaration on the law. The Parliament which could have brought necessary changes in the IPC, left untouched by 2013 amendment Act, has missed yet another opportunity. By bringing superficial reforms, the State appears to have washed its hands, from addressing the more pressing need for a comprehensive revision of the penal code.

Moreover, the State narrative of deterrence is nothing but a misguided institutional aggression, detached from ground realities. What is expected from any government is not mere passage of laws but to conduct thorough research, assess its findings and apply reason before making any law.

In the absence of a holistic research oriented approach, the legislature will continue to pass ambiguous and omnibus laws which disregards cardinal principles of criminal law jurisprudence, and constitutional values. It serves well to all stakeholders in a criminal justice system to bear in mind that respect and adherence to laws can only be achieved when the law makers recognises the necessity of reconciling individual rights with that of society, along with the State interest in maintaining law & order.

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