Tilting of Courts towards Gender Inclusive Interpretation of Rape Laws in IPC
The rape laws in India have been gender-specific since the colonial era. They are based on the heterosexual classification of genders in society and fail to take into account the victims of sexual assault falling outside the heterosexual matrix. This article argues that gender-specific rape laws need to evolve in light of the recent developments in Indian jurisprudence.
The article – firstly, mentions a recent judgement by Allahabad High Court (‘HC’) ruling that a woman can be charged for perpetrating a rape thereby refuting the opposition to gender-neutral rape laws offered by some feminists; and secondly, shows how gender-specific rape laws infringe the fundamental rights of the transgender community by ignoring the sexual assault faced by the transgender community and section 377 is insufficient for their protection. The article offers a conclusion that the recent trend of judgements shows the tilt of courts towards a gender-inclusive interpretation of IPC. However, the legislature has the onus to facilitate necessary amendments.
Recent judgement and Amended Rape Laws after 2013
On February 14, Allahabad High Court held that a woman can be prosecuted for the offence of ‘gang rape’ under section 376D of the Indian Penal Code (‘IPC’). Section 376D states that if rape is committed by one or more persons in furtherance of common intention, then every person sharing the common intention will be ‘deemed to have committed the offence of rape’. A woman cannot commit rape as per section 375 of IPC under which only ‘a man’ can be the perpetrator and only ‘a woman’ can be the victim. The HC stated that a woman cannot commit rape but can facilitate the act of rape and therefore be held liable. The stance of the court breaks the premise, frequently used to justify the gender-specific nature of rape laws in India, that rape is a gendered offence rooted in patriarchal structure. This premise was offered as an opposition to the introduction of gender-neutral rape laws in India, first endorsed by Justice Jaspal Singh in Sudesh Jhaku v KC Jhaku 1996. The premise fails to consider the influence of other power structures in society that may affect the roles of victim and perpetrator. Rape is an offence of sexual abuse of power that may be affected by other power relations such as – caste, race, minority and marginalisation of third genders – and not solely by power imbalance between binary genders.
The 172nd Report of the Law Commission of India recommended making the rape laws completely
gender-neutral in India i.e., victims and perpetrators could identify as any gender. However, Justice Verma Committee (JVC) constituted after the Nirbhaya Rape Case suggested that rape laws should be made gender-neutral only from the perspective of the victims i.e. only the victim can identify as any gender while the perpetrator has to be a ‘man’. This recommendation received criticism for trivializing the sufferings of women as victims of rape and resultantly the rape laws remained gender-specific in India though their ambit was widened via the Criminal Law (Amendment) Act, 2013 to include non-penetrative acts. Some feminist scholars argue that rape laws should not be made gender-neutral from the perspective of the perpetrator because “throughout the two decades of struggle, not a single case of a reversal of gender roles, in the realm of sexual offence, had ever surfaced in the Indian context”. This argument is flawed as it fails to consider that no official records of the cases do not mean that there cannot be instances where women may perpetrate sexual assault. Also, the argument offered by some feminists that the risk of pregnancy acts as a deterrent for women to perpetrate sexual assault is ill-founded. Sexual assault or rape is no more restricted to penile-vaginal penetration that can result in pregnancy. Section 375(b) of IPC includes the use of objects or any other body part than the penis that will constitute rape if inserted into the urethra or anus of the woman. The Allahabad HC further bolsters the position that a woman can be the perpetrator of rape.
Absence of protection to Transgenders against sexual assaults
In NALSA v Union of India 2014, the transgender community was not only given recognition but also basic Fundamental Rights including Article 21 of the Constitution. In Bodhisatwa v Subhra Chakraborty 1996, the SC stated that rape is a crime against the Fundamental Rights of humans including the most cherished right i.e. Right to Life and Personal Liberty under Article 21. Justice Radhakrishnan stated in the NALSA judgement that “sexual assault, including molestation, rape, forced anal and oral sex, gang rape and stripping” has been committed against transgender people and there are “reliable statistics and materials” to support the same. A report prepared by National AIDS Control Organization in 2014-15 reveals that 20% of the surveyed transgenders have suffered from sexual violence in the year 2013-14. Therefore, the transgender community is vulnerable to sexual
assault and not protecting them leads to a violation of their Fundamental Rights.
Some people may argue that section 377 of the IPC (punishing ‘unnatural offences’) provides protection to transgender people against sexual assault. This position may get bolstered by a judgement on 11 February 2023 where a transwoman was convicted by a Kerala POCSO Court for sexually assaulting a minor. The court stated that Navtej Singh Johar v Union of India 2018 only decriminalized consensual sex between adults while non-consensual sex with adults (here adults is used in a gender-neutral sense and includes transgender people) or consensual or non-consensual sex with minors will constitute an offence under section 377. However, there are significant differences between sections 375 and 377. First, while rape is punishable with a minimum of seven years imprisonment, there is no such minimum punishment for unnatural offences under section 377. Second, there is no harsh punishment for committing aggravated forms of ‘unnatural offences’, unlike rape where sections 376A, 376DB and 376E can punish an offender with the death penalty if the victim dies or goes into a permanent vegetative state after the rape is committed or gang rape is committed on a woman less than twelve years or offence of rape is repeated respectively. Third, there is no clear definition of what constitutes an ‘unnatural offence’ unlike rape which is clearly defined under section 375. Therefore, the deterrence offered by section 377 is not adequate for the protection of transgender people from sexual offences.
The presence of gender-specific rape laws harms the society as it reinforces the heterosexual matrix and fails to consider that in certain cases women can be perpetrators of rape. In the cases of NALSA and Navtej Singh Johar, the court highlighted the need for situating a law in the surrounding social reality. While rape may be affected by the power structure of society, it is not solely rooted in gender. Minority and marginalized individuals continuously remain vulnerable to suffering sexual assault. They should not be denied remedy or protection under the law for not belonging to a particular gender. The courts have been tilting their stance towards interpreting the offences under IPC as gender inclusive. However, the courts can only interpret or strike down the unconstitutional law. The ball is in the legislature’s court to make the necessary amendments to criminal law for making IPC gender inclusive.
The author is an undergraduate student at the NLSIU, Bengaluru.
Humans and Technological implants: Is the current legislation ready or lagging?
Atulit Raj and Prithvi Sreekanth
As technology advances, the proximity of gadgets and devices to human bodies becomes closer and closer. The sizes become smaller and smaller, and the effort needed to use them becomes lesser and lesser. In this pursuit of convenience, technology is becoming a part of us and our lives. With these huge advancements in technology, there also arise legal lapses from within existing legislation as well as entirely new questions that must be answered. This blog aims to assess whether the existing legal framework with regards to technological implants are sufficient in covering such lacunae.
Technological Implants: A brief understanding
Technological implants, generally, refers to “a class of objects that can be inserted directly into the human body to modify, enhance or heal in ways that non-embedded devices cannot”. Additionally, these implants can also help interact with the digital world around us. They work via-radio communication with other devices and are either powered through battery or are passive transponders, i.e., they are activated only when powered by an external source.
Why are technological implants so relevant off-late, and what is the worry about?
There is an exponential increase in usage of such implants in human bodies, for instance, the “microchip” implants can be used to open doors, link your health records, and even buy train tickets. Furthermore, a wave of the hand is all it takes to purchase products across several different countries. While the idea of integration of tech implants into the human-body has been around since decades in the form of Pacemakers or Cochlear implants but the need for regulation or law is truly felt in the present times as they possess the ability to store and share data thereby being vulnerable to cyber-attacks which may lead to theft of personal data, furthermore there’s a pressing need for holistic deliberation on grounds of human rights, cyber laws, safety regulation, product liability
laws, tort liability, and medical malpractice.
Analysing the sufficiency of the existing framework
Exploring the existing legal framework
Technological implants in the Indian atmosphere are generally discussed with respect to medical devices as such implants holds utility in the field of medicine. Primarily, it is important to know that the Drugs and Cosmetics Act, 1940 (“DCA”) is the existing law pertaining medical devices. In 2017, the Ministry of Health and Family Welfare (“MHFW”) released a notification titled “Medical Device Rules, 2017” that went on to categorise the medical devices on the basis of associated risks. Subsequently, the MHFW introduced “Medical Devices (Amendment) Rules, 2020” which provides the following information:
- Given the nature of their utilization, medical devices are to be treated on par with ‘drugs’ under Section 3(b)(iv) of DCA.
- The Primary intended action of the device in or on human body or animals should not be pharmacological or immunological or metabolic.
- A method that allows producers / importers to register Newly Notified Medical Devices.
In an effort to cover up the drawbacks of the DCA, the MHFW has released the draft of New Drugs, Medical Devices and Cosmetics Bill, 2022 – the same (importantly) attempts to give a separate, comprehensive definition of medical devices; proposes establishment of testing centres and proposes formation of Medical Devices Technical Advisory Board (MDTAB), to advise the central government and the state governments on technicalities.
Foraying into the lapses
Although there have been active efforts by the Central Government, there remains great grounds to cover in order to work towards a comprehensive legislative framework to deal with technological implants in India.
Firstly, the fact that they are treated as ‘drugs’ is the greatest roadblock to address any issue related to them – they are, by nature, engineering products and hence needs to be regulated as such. Secondly, there is a pressing need to address regulations with regards to software incorporated in medical devices to ensure quality performance. Thirdly, the establishment of credible infrastructure for testing and establishing quality limits for each device is the need of the hour. Lastly, the risks pertaining data processing also remains a seldom discussed peril of such devices, as they may store chunks of ‘big data’ that needs to deal with caution. Also, a comprehensive debate regarding ‘enhancement devices’ is also they give an opportunity to augment bodily and intellectual functions (a giant shift from mere therapeutic aids), a question regarding their legitimacy and their impact towards society at large are few matters of great discourse.
Conclusion, with a hope for new beginnings
Technological implants are truly the greatest product of human’s intellect, as every day we push the envelope as to what can and what cannot be augmented or developed. While the advancements are crucial to further the society at large, an inability to entertain the legal perspective of the same could result in disastrous aftermath. These devices are of sophisticated nature and contains web of factors that ensure great performance, without addressing the regulatory gaps therewith one could suffer great consequences – to name a few, the potential risk of clinical modification, external interference, software manipulation and many more. Further, clinical testing poses to be the crucial factor in enabling the use of medical devices, as they seek to ensure the quality and make qualitative notes on the features of the device. In conclusion, a need to pre-mitigate the risks holds supreme when talking about medical devices and the regulatory framework to promote the same demands deliberation by the greatest minds.
The authors are undergraduate students at Nirma University.
The legality of the investigation of Adani Enterprises by SEBI after the Hindenburg Report
Ami T Thakker and Shreyansh Anchalia
On 24th January 2023, Hindenburg Research published a report alleging that Adani Enterprises engaged in stock manipulation and accounting fraud. This caused a bloodbath in the market where Sensex fell by 1200 points and Nifty 50 crashed to the level of 17600. The stocks of banking companies were among the worst affected as Nifty Bank lost over 1,300 points. Amid the immense selling pressure in the market, the equity market watchdog Securities and Exchange Board of India (‘SEBI’) has assured the investors that it will scrutinize the Adani Group. It has also launched a preliminary investigation on the issue. It can be inferred that this increased scrutiny and investigation has been launched as an aftermath of the Hindenburg Report.
However, Adani in its response claimed that the allegations in the Hindenburg report are unsubstantiated, misleading, and malicious. Further, they claimed that there was an ulterior motive to publish this, as it will enable Hindenburg, an admitted short seller, to make significant financial profits. Finally, they claimed that the majority of the questions posed in the report were either already disclosed in their annual report or were addressed by SEBI, two years ago, during a previous investigation. Therefore, contending that there is no need for SEBI to initiate a new inquiry into the matter as the exercise of discretionary power to investigate should not be arbitrary.
This article aims to elaborate on the investigative powers of SEBI, its methodology, and the scope of investigation elucidated in Section 11C of the SEBI Act. It then analyses the legality of the investigation launched by SEBI based on the Hindenburg Report.
Investigative power of SEBI
Section 11C of the SEBI Act provides SEBI the power to investigate. This power also surfaces from several regulations made by SEBI. Investigation under this section arises due to two scenarios. First, when the effect of transactions on the investors and securities market is detrimental. Second, when SEBI suspects transgressions by persons participating in the securities market against the rules and regulations issued by it. To commence an investigation, this section has the precondition of the existence of “reasonable grounds to believe”. However, for the Board to form a reasonable ground, it is necessary to initiate a preliminary inquiry. The purpose of the preliminary inquiry would be to gather information and evidence to determine whether there is a prima facie case of wrongdoing that warrants further investigation and enforcement action. The inquiry may be initiated based on the following reasons: –
- Vague rumors,
- Information from industry sources or stock exchanges.
- Reports (Public in nature like press reports, and research reports)
- Information shared by other regulators
In Prakash Gupta vs. Securities and Exchange Board of India, SEBI received an anonymous complaint alleging price and insider trading in the scrip
of the company. Based on this complaint, SEBI started a preliminary inquiry and after the preliminary inquiry, SEBI started an investigation. It was noted that for initiation of investigation by SEBI, preliminary inquiry becomes the concrete ground.
In the current scenario, we can classify the findings of Hindenburg as a “report” and “information from other industry sources”. Hence the Hindenburg report can be a legitimate ground to start a preliminary inquiry. This inquiry can also lead to an investigation. However, the initiation of a preliminary inquiry does not necessarily mean that SEBI has concluded that the allegations are true or that there is a violation of securities laws. Rather, it is a preliminary step in the investigation process to gather more information to determine whether further action is necessary. If the inquiry does uncover evidence of wrongdoing, SEBI may initiate a full investigation and take enforcement action as appropriate.
Methodology of the Investigation under Section 11C
In Ritu Devi v. Securities and Exchange Board of India, the Madras High Court held that investigation is essentially an exercise in which relevant facts are sought to be gathered through discovery and collection of evidence by following the prescribed procedure. It consists of an examination of related persons, and the search, and seizure of the necessary materials. Additionally, it is pertinent to note that initiating an investigation does not hold the suspected parties liable as it is not an adjudicatory exercise. In Bhorukha Financial Services Ltd. Vs. SEBI, the Securities Appellate Tribunal (SAT) held that an investigation report must contain all the charges brought against a person but furnishing of reasons for such charges is not necessary and is not considered prejudicial to the parties in question due to non-furnishings of findings.Several indicators could suggest the need for a detailed examination and investigation of trading activity in the securities market. These indicators include the domination of trading by certain individuals or entities on a net gross basis, order spoofing, high open interest position, marking the close (trading during the closing time of the market to influence the closing price), abnormal daily volumes, high off-market transfer, large trades by connected persons, trading in and around major corporate announcements, sudden or continuous (pattern) price rise in a scrip, trade of large value when KYC documents show less income, and unusual price variation in the price of a scrip that is not justified by revenues, profits, or the P/E multiple of the stock. [MU1] These indicators may suggest potential violations of securities laws or fraudulent or deceptive practices. Therefore, it is important for regulators like SEBI to carefully monitor and investigate such activities to ensure the fairness, integrity, and stability of the securities market.
In the process of investigation, SEBI gathers two types of data: –
- Market Data- Order and Trade Log, transaction statements, etc.
- Static Data- KYC Documents Contract Notes, Bank Records, Financial Results, Events around major corporate development, call records, etc
As held by SAT, Board has the onus to investigate on receipt of a complaint and determine if there is a prima facie case, and finally deliver a just investigation report. In the present scenario, it can be deduced that the stock prices of Adani Enterprises are overvalued. This is based on conventional metrics like Price to Equity Ratio, Price Sales ratio, etc. The Hindenburg report also highlighted that the stocks of the group’s seven key listed companies grew by 819% in the last three years but there has been no such exponential rise in profits.Furthermore, the report also alleges that there is a high proportion of promoter’s holdings in the Adani enterprises, and the majority proportions of public shares are also held by the shell companies that have ties with the Adani Group. Such a scenario indicates price rigging and a pump-and-dump scheme in which investigation is warranted. In DKG Builddown Private Ltd. vs. The Adjudicating and Enquiry Officer, the rigging of shares by the suspects became a ground for initiating an investigation and convicting the riggers.
Lastly, the report also alleged several accounting frauds and non-compliances such as hiring a professional too young to be able to handle the auditing of such a large-scale firm as independent auditors. Another reason to initiate an investigation is that there are suspicions regarding the veracity of the financial statements as held in T. Takano vs. Securities and Exchange Board of India and Ors.
Scope of Investigation
It is enshrined in Section 11C that the investigating officer has the authority to investigate any person associated with the market. Such a wide interpretation allows the Board to carry out an effective investigation. In Kishore Rajram Chhabria v. SEBI, the phrase “persons associated with the market” covers a company, its directors, its shareholders/investors, etc. for without them there cannot be a securities market.
In the present scenario, SEBI has already started investigating two Mauritius-based firms that participated as anchor investors of the Adani Group in the securities market. Thus, the question arises whether foreign buyers of securities can come under the umbrella of “persons associated with the securities market.” In Karnavati Fincap Ltd. and Alka Spinners Ltd. v. SEBI, it was held that the aforementioned term must have a wider interpretation and the buyers of the securities fall within the purview of that expression.
Due to such wide-ranging judicial, executive, and legislative powers of regulation of the securities market, SEBI can investigate the Adani Group since the prices have fallen drastically and investors’ wealth has been considerably eroded. The only check upon the exercise of such wide-ranging power is that it must comply with the Constitution and the SEBI Act. Hence, the increased scrutiny of the Adani Group based on the Hindenburg Report by the watchdog is valid.
 Sumit Agarwal and Robin Joseph Baby, Agarwal and Baby on Sebi Act- A legal commentary on Securities and Exchange Board of India Act, 1992, 228, Taxmann Publication (2011).
 Sumit Agarwal and Robin Joseph Baby, Agarwal and Baby on Sebi Act- A legal commentary on Securities and Exchange Board of India Act, 1992, 229, Taxmann Publication (2011).
The authors are undergraduate students at Nirma University.