The Supreme Court on Friday (February 2) encountered a strange petition questioning the “gender discrimination” in the law such as Section 354 (5) of the Code of Criminal Procedure, 1973 (CrPC) which reads as, “When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead”.
The petitioner, advocate Rishi Malhotra, contended that the said section suggests that only men can be the perpetrators of crime and not women.
The bench led by Chief Justice Dipak Misra and comprising Justices A M Khanwilkar and D Y Chnadrachud, while disposing of the petition, opined that such an amendment in the laws and the sections can be brought about by the Parliament and not the judiciary.
The petitioner said that the crimes defined under the IPC use the term “man” and this should be replaced by “whoever” thus making it applicable for both men and women. The petitioner also claimed that this was in violation of the Article 15 of the Constitution which gives one the right against discrimination on the basis of gender. To this, the Chief Justice responded that the said article was brought in specifically to protect women and children.
Justice Misra said that there are certain sections which were brought in to protect women and children such as the POCSO Act.
The petitioner contended that certain sections suggest that the accused can only be a man, which is contrary to Section 2 of the Indian Penal Code (IPC) which states, “Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India”.
The petitioner also put up questions like why cannot women be the offenders of crime such as Section 375 b—”insertion of a foreign object into the private parts of a woman”.
The petitioner told the court that a man cannot file a complaint for stalking. To which Justice Chandrachud asked the petitioner “are you trying to say that women also stalk men?” The petitioner replied, “yes”.
Justice D Y Chandrachud told the petitioner that the court cannot amend the sections and include “she” along with “he”.
The petition was disposed off.
—India Legal Bureau