Section 375 of the Indian Penal Code (IPC) defines the crime of rape and outlines its punishment. It states that a man is said to have committed rape if he engages in sexual intercourse with a woman under any of the following circumstances:

1. Against her will.
2. Without her consent.
3. With her consent, when her consent has been obtained by putting her in fear of death or of hurt.
4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
5. The provision also specifies that sexual intercourse includes penetration of any bodily orifice, and that consent given under certain circumstances, such as intoxication or mental incapacity, is not valid.

The punishment for rape under Section 375 is imprisonment for a term of not less than seven years, which may extend to imprisonment for life, and a fine. The punishment may be enhanced in certain circumstances, such as if the victim is a minor or if the rape results in death or serious injury.

The current version of Section 375 defines rape as "sexual intercourse with a woman against her will or without her consent." This definition excludes men as victims of rape, and has been the subject of much debate and criticism.

The provision is gender-biased because it assumes that only women can be victims of rape, and that men are always the perpetrators. This perpetuates harmful stereotypes about gender and reinforces the idea that men are inherently violent and aggressive towards women.

Moreover, the provision's focus on the victim's consent is also problematic. Critics argue that it places the burden of proof on the victim to prove that they did not consent to sexual intercourse, rather than on the perpetrator to prove that they obtained consent. This can make it difficult for victims to come forward and report sexual assault, as they may be afraid of not being believed or of facing victim-blaming and stigma.

Many scholars and activists have argued that this definition is not inclusive of all victims of sexual assault, as it does not recognize that men, transgender people, and non-binary individuals can also be victims of rape. By limiting the definition of rape to only women, the law fails to protect these other vulnerable groups and reinforces harmful gender stereotypes.

Furthermore, the section also contains several problematic provisions that are biased against women. For example, under section 375, a man can claim that he had sexual intercourse with a woman with her consent, even if he used force or threatened her. This provision is problematic as it allows rapists to escape punishment if they can prove that the victim initially consented to the sexual act.

Meaning Of Gender Biased

Gender bias refers to a preference or prejudice toward one gender over another, often resulting in unfair treatment or opportunities for individuals based on their gender. Gender bias can manifest in many different ways, including stereotyping, discrimination, unequal pay, unequal access to education or employment opportunities, and unequal representation in positions of power.

Gender bias can be conscious or unconscious and can affect both men and women, although women are often more negatively impacted by it. Gender bias is a significant issue that can have a far-reaching impact on individuals, communities, and society as a whole.

Gender bias can be intentional or unintentional, and it can be perpetuated by both men and women. It is often rooted in cultural and societal norms that perpetuate stereotypes and perpetuate gender inequalities. Gender bias can lead to unequal opportunities, limited access to resources, and discrimination against individuals based on their gender identity or expression.

Explanation Of Section-375 IPC Provision

Section 375 of the Indian Penal Code (IPC) deals with the offense of rape in India. The provision defines rape as the act of a man having sexual intercourse with a woman without her consent or if she is incapable of giving consent.

The section states that a man is said to commit rape if he does any of the following acts:

1. Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person;
2. 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 do so with him or any other person;
3. Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus, or any other part of the body of the woman or makes her do so with him or any other person;
4. Applies his mouth to the vagina, anus, or any other part of the body of a woman or makes her do so with him or any other person; and
5. Uses or threatens to use criminal force against a woman to compel her to have sexual intercourse with him.

The provision also states that sexual intercourse or sexual acts with a woman under certain circumstances, such as when she is under 18 years of age, or if she is unable to understand the nature and consequences of the act, or if she is intoxicated or under the influence of drugs, or if she is in a state of unconsciousness or unable to communicate her consent, will be considered rape.

If a man is found guilty of rape under Section 375, he can be punished with imprisonment for a term of not less than seven years but which may extend to imprisonment for life, and shall also be liable to pay fine. In certain cases, the punishment can also include the death penalty.

Section-375 IPC Ought To Be

Section 375 of the Indian Penal Code (IPC) is the provision that deals with the offense of rape in India. The section defines rape and lays down the punishment for the crime. The provision is meant to protect the sexual autonomy and bodily integrity of women, and to ensure that sexual violence is punished as a serious crime.

However, there are certain criticisms of Section 375 of the IPC.

Some of these criticisms include:

• The provision is gender-biased: Section 375 only recognizes women as victims of rape, and does not acknowledge that men and transgender persons can also be victims of sexual violence.
• The provision is based on a narrow definition of consent: Section 375 requires that the victim must have explicitly refused consent or been incapable of giving consent. This narrow definition of consent fails to recognize that there are many other situations where consent may not be freely given, such as when the victim is coerced, threatened, or manipulated.
• The provision is subject to misuse: There have been instances where Section 375 has been misused to falsely implicate men in cases of rape.
• There are also calls for the provision to be revised to include the concept of affirmative consent, which would require the person initiating sexual activity to obtain clear and unambiguous consent from their partner. The absence of consent should be recognized as rape, even if the victim does not physically resist the sexual act. This approach would place the emphasis on ensuring that both partners engage in consensual sexual activity.
   

In light of these criticisms, some experts have suggested that Section 375 of the IPC should be amended to broaden the definition of rape to include all genders, and to recognize that consent can be given in various ways. There have also been calls for the provision to be rephrased to remove gender-bias and to make it more victim-friendly.

Future Perspective Of Section-375 Is Gender Biased

The future perspective of Section 375 of the Indian Penal Code (IPC) being gender-biased depends on the actions taken to address the gender disparities in the provision. While the provision recognizes the offense of rape and provides punishments for offenders, there are concerns that it is gender-biased in its current form, as it only recognizes men as perpetrators of rape and women as victims.

To address this issue, there have been calls to broaden the scope of the provision to include all gender identities and sexual orientations, and to ensure that the law is gender-neutral in its application. This would ensure that all victims of sexual violence, regardless of their gender identity or sexual orientation, are protected under the law.

Additionally, there have been calls to include the concept of affirmative consent in the provision, which would require the person initiating sexual activity to obtain clear and unambiguous consent from their partner. This would ensure that the emphasis is on ensuring that both partners engage in consensual sexual activity.

If these changes are implemented, Section 375 of the IPC can be seen as a future perspective that is not gender-biased, and that is inclusive and effective in protecting all individuals from sexual violence. However, if no action is taken to address the gender disparities in the provision, it will continue to be perceived as gender-biased, and there will be ongoing calls for reform and updates to ensure that it reflects the changing dynamics of sexual violence.

Additionally, there may be a need to increase awareness and education on sexual violence and consent in society, to ensure that individuals understand the importance of respecting boundaries and obtaining consent before engaging in sexual activity.

Related Sections Supporting Section-375 IPC Is Gender Biased

There are several related sections in the Indian Penal Code (IPC) that support Section 375 and contribute to its gender bias. Some of these sections include:

• Section 376: This section defines the punishment for rape and specifies that only men can be punished for committing the offense of rape. This reinforces the gender bias of Section 375 and further excludes women and other genders as potential perpetrators of rape.
   
• Section 354: This section deals with the offense of outraging the modesty of a woman and defines the act as any physical contact or advances involving unwelcome and explicit sexual overtures. However, this section does not recognize that men or individuals of other genders can also be victims of sexual harassment and assault.
   
• Section 497: This section deals with adultery and specifies that only men can be punished for committing the offense. This section reinforces the harmful gender stereotype that women are the property of men and that men are entitled to control their wives' sexual behavior.
   
• Section 155(4) of the Indian Evidence Act: This provision allows the defense to question the character of the victim during cross-examination, which is often used to discredit the victim and portray them as "loose" or "immoral." This reinforces the harmful gender stereotype that women who engage in sexual activity outside of marriage or without consent are deserving of punishment or blame.

These sections and provisions contribute to the gender bias of Section 375 and reinforce harmful gender stereotypes. To address these issues, there is a need to reform the IPC and the Indian legal system to recognize all victims of sexual assault and harassment, irrespective of their gender, and to ensure that the legal system is not perpetuating harmful gender stereotypes.

Conclusive Evidence That Section-375 IPC Is Gender Biased:

Section 375 of the Indian Penal Code has been criticized for being gender-biased for several reasons.

Here are some points that provide conclusive evidence of its gender bias:

• Limited definition of rape:
  Section 375 defines rape as non-consensual sexual intercourse with a woman. This definition excludes men and transgender people as potential victims of rape, which reinforces harmful gender stereotypes and excludes vulnerable groups.
   
• Exception for marital rape:
  Section 375(2) contains an exception that allows men to have sexual intercourse with their wives if they are over the age of 15, even if it is without their consent. This exception perpetuates the stereotype that women are the property of men and that men have the right to control their wives' bodies.
   
• Burden of proof:
  Section 114A of the Indian Evidence Act presumes that sexual intercourse by the accused was without the consent of the woman, in case the woman states in her evidence before the court that she did not consent to the sexual intercourse. However, this presumption does not apply if the sexual act was committed within the confines of a marriage. This places the burden of proof on the victim and reinforces the harmful gender stereotype that women lie about rape.
   
• Harmful exceptions:
  Section 375 contains several exceptions that reinforce harmful gender stereotypes, such as the exception for consensual sexual intercourse with a minor wife or with a woman under the influence of drugs or alcohol.

Overall, these factors provide conclusive evidence that Section 375 of the Indian Penal Code is gender-biased and excludes vulnerable groups from protection against sexual assault. There is a need to reform the law to ensure that all victims of sexual assault, irrespective of their gender or marital status, are protected and that the legal system does not perpetuate harmful gender stereotypes.

Supporting Case Laws

• Independent Thought Vs Union Of India (2017):[1]

  In this case, the Supreme Court of India struck down the exception to Section 375 that allowed men to have sexual intercourse with their wives who were between the ages of 15 and 18, even without their consent. The Court held that the exception violated the rights of women and perpetuated the stereotype that women are the property of men. This case highlights the gender bias of Section 375 and the need to reform the law to ensure that all victims of rape are protected, irrespective of their marital status.
   

• State Of Haryana Vs Bhajan Lal (1992):[2]

  In this case, the Supreme Court held that the evidence of a rape victim who had a history of sexual promiscuity or who was habituated to sexual intercourse was not reliable. This decision reinforces the harmful gender stereotype that women who engage in sexual activity outside of marriage or without consent are deserving of punishment or blame. It also highlights the need to reform Section 155(4) of the Indian Evidence Act, which allows the defense to question the character of the victim during cross-examination.
   

• State Of Maharashtra Vs Madhukar Narayan Mardikar (1991):[3]

  In this case, the Bombay High Court held that a man could not be convicted of rape if he genuinely believed that the victim had consented to sexual intercourse, even if she did not actually consent. This decision reinforces the harmful gender stereotype that men are entitled to control women's bodies and that women's consent is not important. It also highlights the need to reform Section 375 of the IPC to ensure that men cannot escape punishment for rape by claiming that the victim initially consented to the sexual act.

These cases illustrate how the gender bias of Section 375 of the IPC has led to harmful outcomes for women and reinforces harmful gender stereotypes. They also highlight the need to reform the law to ensure that all victims of rape are protected, irrespective of their gender, marital status, or sexual history.

Conclusion
The conclusion that can be drawn is that Section 375 of the Indian Penal Code is seen as gender-biased by some critics due to its narrow definition of rape that excludes men as victims and its focus on the victim's consent rather than the perpetrator's actions. The provision has also been criticized for being too lenient in terms of punishment for offenders.

While there have been efforts to amend the provision to address these concerns, it remains a controversial issue that requires further examination and discussion. Overall, [4][5][6]there is a need to ensure that laws protecting victims of sexual assault are fair and just for all individuals, regardless of gender.

References:

• Bare Act of IPC, 1860
• https://www.legalserviceindia.com/legal/article-2682-gender-and-indian-penal-code-analysis-of-section-375.html
• https://blog.ipleaders.in/need-know-gender-inequality-rape-laws/

End-Notes:

1. 10 SSC 800
2. 259 1992 SSC Supl.
3. (1991) 1 SSC 57

Written By: Sanjay Kumar Sah