An Overview of Criminal Laws in India in Relation to Sex and Sexuality

Abstract

Sex and sexuality are frequently the cause of erratic, aggressive and violent behavior. Women are often at the receiving end of such behaviors and are subjected to sexual assaults. The Mathura rape case, the Nirbhaya case and the Kathua rape case are some of the heinous crime cases against women that occurred and rocked the entire country. In response to these cases, amendments were introduced in the laws dealing with the offences against women in our country by way of Criminal Law (Amendment) Acts in 1983, 2013 and 2018. Verma Committee formed after the Nirbhaya case was of the view that rape and sexual assault are not merely crimes of passion but an expression of power. The 2013 Amendment brought about substantial changes in the laws for crimes against women, and several new crimes like stalking, harassing the women at the work places, voyeurism, severe punishments for acid throwing and so on were introduced. The Information Technology Act, 2000, describes cyber-crimes in relation to sex and sexuality and has provisions for severe punishment. The POCSO Act was enacted in 2012 to deal with sexual offences committed against children. Recently, important developments have occurred, like decriminalizing the same-sex relationships, striking down adultery as an offence, introducing legislation for transgenders, ensuring human rights for sex workers and so on. A brief account of criminal laws in relation to sex and sexuality is given in this article.

Introduction

Sex and sexuality are the primal instincts of civilizations. They are also a very important factor affecting the human behavior. They also form the central core of social bonds, couple dynamics, relationships, intimacy and reproduction. ¹ But sometimes, sex and sexuality are also the cause of erratic, aggressive and violent behavior. Frequently, women are at the receiving end of such behaviors and are subjected to sexual assaults. Enacted during the British rule period, The Indian Penal Code (IPC), 1860, still serves as a basic treatise of criminal laws in India. ² The first changes in the IPC and the concept of aggravated rape or custodial rape were introduced as a consequence of the acquittal of policemen in a rape case known as the Mathura rape case of 1972 on account of passive submission and also the victim’s “loose moral values”. ³ The acquittal caused widespread uproar, leading to the enactment of the Criminal Law (Amendment) Act 1983. ⁴ In December 2012, the Nirbhaya tragedy in Delhi again caused unprecedented uproar across the country. In response, the Union Government formed the Verma Committee to suggest changes in the criminal laws in India for quicker and enhanced punishments for sexual offences against women. The committee submitted its report in January 2013. ⁵ As per the recommendation of the committee, the Criminal Law (Amendment) Act, 2013, was enacted, which introduced several amendments in the laws dealing with the offences against women in the IPC, 1860, the Criminal Procedure Code (CrPC), 1973, and the Indian Evidence Act (IEA), 1872. ⁶ A new law The Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act, 2013, was also enacted as per the committee’s recommendation. ⁷ A brief review of the extant Indian criminal laws in relation to sex and sexuality is provided here in this article.

Rape: Section 375 and Section 376, IPC

Rape is one of the most important sexual offences. A man is said to commit “rape” if he has sexual intercourse with a woman against her will, without her consent, or with consent obtained unlawfully, such as by putting her or any other person in fear of death or hurt, giving her the impression that she is lawfully married, or if she is incapable of giving consent at the time by reason of unsoundness of mind or intoxication. The 2013 amendment another condition of inability to communicate the consent on her part. Consent means an unequivocal voluntary agreement by words, gestures or any other form of verbal or non-verbal communication of willingness to participate in the specific sexual act. Lack of physical resistance is not regarded as consent on its own. Sexual intercourse by a man with his own wife who is not under 15 years of age is not rape. The offence of rape includes any act of penetration of penis or any part of body or any object into the vagina, urethra, anus or mouth; or any object or any part of the body to any extent, into the vagina, urethra or anus of the woman or making another person to do so or manipulation of any part of the body of a woman so as to cause such penetration. Penetration means penetration to any extent. Application of the mouth to the vagina, anus or urethra is also covered under this section. Compelling a woman to do such activity to him or any other person also an offence of rape.

Punishment of Rape: Section 376, IPC

Punishment for rape is imprisonment of either description for a term not less than 7 years, extendable to imprisonment for life, or a fine. Provision of enhanced punishment of minimum period of 10 years or imprisonment for the remainder period of life has been made by the 2013 amendment in specified situations like in a person committing rape is in a position of control or dominance or on a girl below 16 years of age or on a woman incapable of giving consent or commits repeated rape on the same woman or causes grievous bodily injury to the woman. Other specified situations are rape committed by a police officer, public servant member, member of the armed forces, management or staff of a jail, management or staff of a hospital, guardian, teacher or relative of the woman who happens to be in a position of control or dominance. Enhanced punishment is also provided for the offence committed during a communal or sectarian violence. Section 376(A) covers the cases in which the injury caused to the woman has resulted in death or a persistent vegetative state, and the punishment is 20 years extendable to the remainder period of her life. Section 376(B) provides for punishment for sexual intercourse with his own wife living separately under a decree of separation or otherwise. Section 376(C) provides for punishment of sexual act, not amounting to rape, committed by public servant or person in a position of authority or in a fiduciary relationship, like staff or management of a jail, remand home, hospital or other such places on a woman who is in his custody or under his charge or in his premises, which is a minimum of five years, extendable to ten years. Section 376(D) provides for the punishment of gang-rape, the act of a group of persons acting in furtherance of a common intention. Each of those persons shall be deemed to have committed of offence of rape and may be punished by rigorous imprisonment for 20 years, extendable to the remainder of their lives. Section 376(E) is for a person, once who convicted of rape, commits the offence again. He is too punished with imprisonment for remainder period of his life. In consequence to the Nirbhaya case, a provision was made in the Juvenile Justice (Care and Protection of Children) Act, 2015, that if heinous crime has been committed by a minor in the age group of 16–18 years, the Juvenile Justice Board would ascertain if the crime was committed as a “child” or an “adult.”

The Criminal Law (Amendment) Act, 2018, was enacted after the infamous Kathua rape case, and it enhanced the minimum punishment for rape from 7 to 10 years. This act also enhanced the minimum punishment for rape below the age of 12–20 years, extendable to imprisonment for the remainder of life or death, whereas punishment for gang-rape of girls below the age of 12 years was kept as imprisonment for the remainder of life or death. ⁸

Unnatural Offences: Section 377 IPC, Including Same Sex Relationship

Voluntarily having carnal intercourse against the order of nature with any man, woman or animal is punishable with imprisonment for life or imprisonment for 10 years plus fine. In 2018, the Supreme Court of India struck down this section so far as it applied to two or more consenting adults or the same sex relationship. ⁹ However, the section shall still remain operational, if the implicated act is done on a non-consenting individual or on an individual below the age of 18 years or on an animal.

Insulting the Modesty of a Women: Section 509, IPC

Offences under this section are intending to insult the modesty of any woman, uttering any word, making any sound or gesture, or exhibiting any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intruding upon the privacy of such woman. By the 2013 amendment, the punishment for such act was increased to imprisonment to term up to 3 years from that up to 1 year.

Sexual Harassment and Outraging the Modesty of a Women: Section 354, IPC

Assaulting or using criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty is punishable with a term up to 2 years. Using assault or criminal force to “dishonor a person” is also an offence under Section 355 IPC. Various amendments have been done in the Section 354 by the Criminal Law (Amendment) Act, 2013, by adding sub-sections (A) to (D), which are as follows.

Section 354(A), IPC: Sexual Harassment

Such as physical contact, advances, sexual overtures, demand for sexual favor, making sexually colored remarks and showing pornography.

Section 354(B), IPC: Disrobing a Woman

Assaulting or using criminal force to any woman or abetting such acts with the intention of disrobing her or compelling her to be naked.

Section 354(C), IPC: VOYERISM

Viewing and/or capturing the image of a girl or woman going about her private acts, where she thinks that no one is watching her is a crime. This includes a woman, using a toilet, or who is undressed or in her underwear, or engaged in a sexual act. Under the provision of privacy act watching in a place, where the circumstances expected to provide reasonable privacy is an offence.

Section 354(D), IPC: Stalking

Following a woman or contacting or attempting to contact such woman to foster interaction repeatedly despite a clear indication of disinterest by such woman or monitoring internet, email or any other form of electronic communication. The sub-section has certain exceptions like law enforcing personnel for pre-vention or detection of crime, entrusted by the state, pursued under any law to comply with any condition or requirement, or when in circumstances, it was reasonable or justified.

Acid Throwing Offences

Damage or disfigurement by throwing acid was made punishable with term of minimum 10 years by adding a new sub-section 326(A) and throwing or attempt of throwing was made punishable with minimum 7 years, the new sub-section 326(B). Section 100, IPC was amended to provide right of private defense against such attempt.

Amendments in the Criminal Procedure Code, 1973

Provisions were made for FIR to be recorded by a woman police officer in rape cases and that of outraging of modesty of women, and in certain cases, this is to be done at the residence of the victim or at another convenient place for the victim. Special provisions have been made for physically or mentally disabled women. All hospitals are to provide first-aid or medical treatment free of cost to the victims of rape or acid throw attacks. Disobeying these provisions by public servants or hospitals has been made punishable offences.

Amendments in Indian Evidence Act, 1872

Evidence of character or previous sexual experience of the woman are not relevant for the question of her consent. There has to be presumption of absence of consent in certain cases of rape, where the act of sexual intercourse by the accused is established. The Criminal Law (Amendment) Act, 1983, introduced the absence of consent on part of the women in cases of established sexual acts by the accused, who has to prove the consent on part of the women. ⁴

The Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act, 2013 ⁷

This act was specifically enacted in 2013 to protect the working women at their workplaces, as it is frequent that they suffer at their workplaces on account of being women. It covers acts of preferential treatment, threat of detrimental treatment, humiliating treatment or hostile work environment. It covers all women irrespective of their age in organized, unorganized, private or public sectors and even covers clients, customers or domestic workers and also applicable in educational institutions and hospitals (for patients). Provisions have been made for Internal Complaints Committee at each office with more than 10 women employee and Local Complaints Committee to be constituted at each district have been made. Committees have the power of civil court for conducting enquiries. After conducting enquiries, committees have to submit report within 90 days and the authorities have to take action within 60 days. Awareness, education and sanitization programs are to be implemented.

Public Nuisance: Section 268, IPC

A person is guilty of a public nuisance who does any act or an illegal omission, which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.

Sale, Letting to Hire, Distribiting etc., of Obscene Objects to Young Person: Section 293, IPC

Selling, letting to hire, distributing, exhibiting or circulating to any person under the age of 20 years such obscene object such as a book, pamphlet, paper, writing, drawing, painting representation, figure or any other object is punishable with imprisonment of either description up to 3 years, and with fine or on the second occasion with imprisonment up to 7 years and fine. Anything lascivious or appealing to the prurient interest or depraving or corrupting is considered to be obscene.

Obscene Acts and Songs: Section 294, IPC

Doing any obscene act in any public place, or singing, reciting or uttering any obscene song, ballad or words, in or near any public place, to the annoyance of others is punishable with imprisonment up to 3 months or with fine or with both.

Indecent Representation of Women (Prohibition) Act, 1986 ¹⁰

The law prohibits any advertisement or publication of any book, pamphlet, paper, film, painting, photographs and so on, carrying indecent representation of women. Anyone associated with it publication or circulation is liable to be punished with a term up to 2–5 years and with fine. Indecent representation is defined as depiction of figure, form or body or any part thereof in an indecent, derogatory to, or denigrating women or is depraving, or corrupting or injuring the public morality. Materials, which are for public good or in the interest of science, literature or learning or for bonafide religious purpose are exempted.

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) ¹¹

This law was gazetted in June 2012 but came into effect on November 14, 2012, after being notified. It covers anyone less than 18 years of age. Offences of sexual assault and penetrative sexual assault against a child, irrespective of gender of the child, were defined, punishable with minimum of 3- or 7-year term, respectively. Offences committed by those in a power of dominance in one way or the other are described as aggravated, like the management or staffs of jail, remand home, protection home, observation home, educational institution, religious institution or any institution, relative, guardian and so on. Such offences committed by gang, using deadly weapons, causing grievous injury, causing physical incapacity, inflicting HIV or other life-threatening disease, making female child pregnant, child under 12 years, on child with physical or mental incapacity, doing it more than once on the same child, also in few others situation, come under aggravated assault. Sexual harassment has also been made punishable with minimum 3-year term. Using child for pornography or storing the pornography materials for commercial purpose has also been made punishable. If the person commits sexual assault or penetrative sexual assault during the use of child for pornography, he/she is liable for enhanced punishments. Abetment of offence or attempt to commit an offence under the act is also punishable. Any person, who comes to the knowledge of an offence or has reasonable apprehension of an offence under the act, is obliged to report to the police unit. Media, studio or hotel, lodge, and so on are also obliged to report the offence. Identity of child is not to be disclosed in any media report, which lowers the reputation of the child or infringes upon his privacy. Such media reports are to be made only after ascertaining their authenticity.

Kidnapping and Abduction

Kidnapping from lawful guardianship is used for girls below the age of 18 years or a boy below 16 years, whereas the term abduction is used for persons above these ages. Kidnapping from lawful guardianship is punishable u/s 363, IPC with punishment up to 7 years. Kidnapping or abduction of any woman or inducing her against her will with intent to compel her or knowingly that she may be compelled to marry any person against her will or in order to force or seduce her to illicit intercourse is punishable for a term up to 10 years and fine u/s 366, IPC. Inducing a woman by criminal intimidation, abuse of authority or any other method of compulsion, to go from any place with intent to force her or seduce her to illicit intercourse or with knowledge is also punishable under the same section. Procuring or inducing a minor girl by any means for the same purpose is punishable u/s 366(A). Section 366(B) is attracted in case of importing a girl above the age of 21 years from a foreign country. Selling or buying a minor girl below the age of 18 years for the purpose of prostitution is punishable u/s 372 and 373, respectively. Section 370 (trafficking of persons) was amended by the Criminal Law (Amendment) Act, 2013, to broaden the scope of trafficking in persons to cover threat, fraud, use of force, abduction, abuse of power and inducement. Enhanced punishments were provided for offences against minors, more than one person or more than one occasion and to public servants engaged in trafficking. Section 370 A was added to cover engaging minors for sexual exploitation in any manner whatsoever.

Human Rights of Sex Workers and the Immoral Traffic (Prevention) Act, 1956 ¹²

After India signed the UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949, it became necessary to enact a law for the purpose. Therefore, The Suppression of Immoral Traffic Act (SITA), 1956, was enacted. After 1986 amendment, the act was renamed as The Immoral Traffic (Prevention) Act (ITPA), 1956. It must be clearly understood that the act does not criminalize the act of prostitution itself, that is, the act of performing consensual sexual in consideration of money. It is only the aspects of promoting the trafficking in women and girls, like the matter of procuring, alluring, enticing and so on into prostitution, establishing, maintaining or being associated in anyway with a brothel and living on the earning of prostitution that are covered by the act and are made criminal offence. ¹³ By the 1986 amendment, the provision of the act of soliciting of clients by the prostitutes was also deleted to be an offence. Recently, the Supreme Court has issued certain directives to the government and different authorities to take measures for ensuring sex workers’ fundamental right to live with dignity and to get equal protection of law as guaranteed under the Indian Constitution. Some of the directives were like providing medical facilities to the sex workers who was subject to sexual assault on equal footing, direction to police to treat sex workers with dignity and not to abuse them, direction to the press not to reveal the identity or photos or videos of sex workers during arrest, raid or rescue operations, directive to the UIADI for issuance of Aadhaar card. ¹⁴ It was widely reported in the press that the Supreme Court has legalized the profession of sex work. But, in fact, the legal status of the sex work and trafficking in it as per the ITPA, 1956, has remained unaltered.

Marital Offences

Marital Rape

It is the act of sexual intercourse with one’s spouse without consent. The act does not attract the provisions of Section 375, IPC, if the wife is above 15 years of age. Verma Committee (2013) has recommended removal of this exception so that the marital rape comes within the ambit of Section 375. But instead of removing the exception, only the Section 376(B) was added by the 2013 amendment as described above, which covers the act of sexual intercourse with own wife living separately, and it is punishable with a term of 2 years extendable to 7 years. But the act of marital rape may constitute “sexual abuse” within the meaning as provided in the Prevention of Domestic Violence Act (PDVA), 2005. However, the PDVA offers only civil remedies. In February 2022, it was stated by the government that a process of comprehensive amendment of criminal laws have been initiated in relation to the question of marital rape. ¹⁵

Cohabitation: Section 493, IPC

Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief shall be punished with imprisonment up to 10 years and fine.

Bigamy: Section 494, IPC

It is punishable for a term up to 10 years and/or with fine, if one chooses to marry concealing his previous marriage from the other party. It is applicable irrespective to the religion. Therefore, if a Muslim male marries for the fifth time and a Muslim female marries for the second time, he/she can be prosecuted under this section.

Adultery: Section 497, IPC

A man having sexual relationship with a woman married to someone else is said to commit the act. The act was punishable u/s 497 of the IPC. However, the section was struck down by the Supreme Court in 2018, (Joseph Shine vs. Union of India) terming it to be unconstitutional based on gender discrimination. ¹⁶ The court observed that adultery is a marital wrong, which should have only civil consequences. A wrong punishable with criminal sanctions, must be a public wrong against society as a whole, and not merely an act committed against an individual victim. Therefore, the adultery may be a civil wrong to be addressed in a way appropriate to it. However, the Court also observed that in criminal sanction may be justified where there is a public element in the wrong, such as offences against State security, and the like.

Enticing or Taking Away or Detaining with Criminal Intent a Married Woman: Section 498, IPC

Enticing or taking away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person is an offence under this section. But after the Joseph Shine case, it would not amount to an offence, if the act is done with the consent of the woman concerned.

Live-In Relationships

Live-in relationships are defined as “continuous co-habitation for a significant period of time, between partners who are not married to each other in a legally acceptable way and are sharing a common household”. ¹⁷ In absence of any specific legislations, social rules or customs in the matter, the Supreme Court of India has issued guidelines for dealing with the emerging phenomena of live-in relationships. Though the concept of live-in relationship is considered immoral by the society but is definitely not illegal in the eyes of the law. Living together is a right to life and therefore it cannot be held illegal. ¹⁸ If certain conditions are met, couples living in such relationships are recognized as being legally married. ¹⁹ Children born out of such relationships are regarded as legitimate. Provisions of domestic relationships are applicable in such relationships and if certain conditions are fulfilled, claim of maintenance under Section 125 CrPC becomes admissible.

Atrocities Related to Unlawful Demand of Dowry by Husbands or Relatives of the Husband: Section 498A, IPC

It was inserted in 1983 to protect married woman from being subjected to cruelty by her husband or her in-laws for unlawful dowry related demands and carries a punishment up to 3 years and fine. The offence is cognizable and non-bailable. ²⁰

Dowry Death: Section 304B, IPC

It was inserted in 1986 and says that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “Dowry Death,” and such husband or relative shall be deemed to have caused her death. ²⁰

The Protection of Women from Domestic Violence Act, 2005 ²¹

This law was enacted for protection of women subjected to domestic violence in India. It covers the relationship between two persons living together in a shared household and related by consanguinity, marriage, through a relationship in nature of a marriage, adoption or are family members living together as a joint family. It encompasses all forms of physical, verbal, emotional, economic and sexual abuse, insults, ridicule, humiliation, name calling and ridicule with regard to not getting male child, and so on. It also includes harassment, injury and harms inflicted to coerce a woman to meet an unlawful demand for dowry. Protection officer are to be appointed by the State Government and duties have been assigned to the Protection Officer, Police and Magistrate. Common remedies under the Act include Protection Order, Residence Order, Custody Order and Compensation Order. The monetary relief issued under this act has to be adequate, fair and reasonable consistent with the standard of living of the person concerned. The order may be under the Section 125, Criminal Procedure Code, 1973 or under any law for the time being in force.

The Transgender Persons (Protection of Rights) Act, 2019 ²²

This law was enacted to provide for protection of rights of the transgender people and also for their welfare and other related matters and it seeks to empower the transgender persons in social, economic and educational fields. Prior to this, the Supreme Court delivered a judgement recognizing various rights of transgender people and suggesting various welfare measures for them. The act prescribes punishment up to 2 years for sexual abuse of transgender people and also for other specified discrimination meted out to them.

Information Technology Act, 2000, Cyber Pornography ²³

Publishing or transmitting or causing to publish or transmit any material in the electronic form which lascivious or appeals to the prurient interest or depraving or corrupting in effect to any person, is punishable term up to 3 years term and fine up to 5 lakhs for a term up to 5–7 years and fine up to 10 lakhs (Section 67). Publishing or transmitting of material containing sexually explicit act is punishable under Section 67A with term up to 5–7 years and fine up to 10 lakhs. However, matters, which are proved to be justified for public good or for educational or scientific purposes, or as a bonafide heritage or religious purposes are exempted. Section 67 deals with electronic materials in any electronic form depicting children engaged in sexually explicit act or conduct or creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children below the age of 18 years in obscene or indecent or sexually explicit manner; or cultivating, enticing or inducing children in any sexually explicit act or in a manner or facilitating abusing children online, or recording in any electronic form own abuse or that of others pertaining to sexually explicit act with children are to be punished with term up to five to seven years and fine up to ten lakhs rupees. In a nutshell, watching pornography, not involving children below the age of 18 years, in private is not illegal in itself. But creating, producing, storing, or transmitting it by any electronic means is prohibited by law. Watching it in a group or in public or those depicting violence against women is also prohibited.