Flaws in Law Do Not Let Dalit Torture in Nagaur Be Called Rape

A foreign object was inserted in the private parts of the victim in the Nagar case, but why can’t we call it rape?

In the Nagaur assault case, the accused had tortured one of the two Dalit youths by pouring petrol on his private parts with a piece of cloth wrapped on a screwdriver.

Under Section 375 of the Indian Penal Code that lays down the provisions of cases of rape and sexual assault, the act of insertion of a foreign object into into the private parts of the victim would constitute “rape” – had it been a woman. Unfortunately, India’s rape laws do not consider torture of this nature against a man as “rape” or “sexual assault.”

Hence, the seven people who have been arrested in the Nagaur case have been booked under several provisions of the IPC, including causing grievous hurt, but none of them deal with sexual assault or rape.

Section 375 Does Not Recognise Rape of Men

After the horrific Nirbhaya case in 2012, Section 375 was amended, expanding the definition of rape to include oral sex as well as the insertion of an object or any other body part into a woman’s vagina, urethra or anus.

It states, “A man is said to commit “rape” if he:

“inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person.”

While the definition of rape was made more comprehensive, it remained one where the gender of the perpetrator and the victim were set in stone in the law itself. In 2013, many parliamentarians and activists had contended against making Section 375 gender specific, arguing it is regressive to say only members of one gender can be perpetrators of rape. They strongly urged the amendment of the law so that it applied to all cases that fit the definition, regardless of the gender of the perpetrator or the victim. However, these recommendations were ignored, with a common argument trotted out that Section 377 of the IPC could be used to deal with cases of rape or sexual assault against men.

Section 377 is Limited, Not Comprehensive

Section 377 of the IPC is the infamous provision that technically criminalised homosexual acts in India, even those which were consensual. The section was read down by the Supreme Court in September 2018 so that it no longer criminalised consensual homosexual acts. Non-consensual acts that fall within its ambit, however, remain criminal offences, meaning that this is the primary provision of criminal law to deal with rape against men.

However, this ambit is much more limited than rape as defined under Section 375.

It defines rape as “carnal intercourse” without consent. Going by how this has been interpreted by the courts in the past, this basically means that unless there is penetration using the body of the perpetrator, it does not fall under “carnal intercourse.” This demonstrates the failing of India’s rape laws and the urgent need to make them more comprehensive and inclusive of gender.

Supreme Court advocate Karuna Nundy, one of the experts who helped in drafting the anti-rape law amendments post the Nirbhaya case, said:

“In the anti rape laws of 2013, the women’s movements sought specifically to have the assault laws be gender neutral with regard to victims. Because 377 exists, but it’s just not adequate.”

While sexual violence against men is not on the same scale as sexual violence against women -- one of the reasons cited for resistance to making Section 375 gender neutral -- the fact that there are gaping flaws in the legal provisions should mean that at the very least, Section 377, which is the only recourse for male victims of sexual abuse, should be expanded.

Need to Expand SC/ST Act to Accommodate Vulnerabilities of Dalit Men

There is also an urgent need to address sexual violence against men in the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act), since the structural nature of oppression of these disadvantaged communities means the men belonging to them are also more vulnerable to sexual violence than men from other communities.

The provisions relating to sexual violence in the current SC/ST Act also only provide for women, except the provision on removing their clothes. Senior advocate Rebecca John - who specialises in criminal law - explained, “There is a gap in the Indian penal code and the The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act 1989 in as much as they don’t deal with sexual offences of the present nature perpetrated on men. So clearly the SC/ST act must address this gap immediately given the vulnerability of Dalit men.”

Karuna Nundy echoes the thought of making SC/ST Act more comprehensive and making the required amendments for this. She said, “The Atrocities Act to protect Dalits from such crimes must particularly be used with its full force.”