The Gender Of Sex Trafficking In The Indian Penal Code, 1860 And Bharatiya Nyaya (Second) Sanhita Bill, 2023

Harshita Choudhary, Ph.D. Fellow at Jindal Global University; LL.M. in Criminal Law from Indian Law Institute (2019-20)

ABSTRACT

This paper would explore the gendered nature of provisions pertaining to sex trafficking in the Indian Penal Code, 1860 with references to the Bharatiya Nyaya (Second) Sanhita Bill, 2023 for any possible improvements in pre- existing provisions. On one hand, we have ss. 370 and 370A, that were introduced by way of the Criminal Law (Amendment) Act, 2013, which deal with sex trafficking in a ‘gender-neutral’ manner. On the other hand, there are other provisions pertaining to sex trafficking, such as, ss. 366, 366A and 366B, that remain ‘gender-specific’. The 2013 amendment despite having a progressive and gender-neutral take on sex trafficking continues to define rape as a gender-specific offence, the practical implication of which is that a trafficked non-female person has significantly less protection under the law as opposed to a woman. This paper would engage with the definitions of gender, man, woman, and persons as given in the IPC and its implication on sex trafficking provisions. This paper would further deal with the question of liability of customers, who are usually male, under sec. 370A. This is a particularly important aspect as Immoral Trafficking (Prevention) Act, 1956 does not hold the customers criminally liable and various High Courts have conflicting judgments regarding customer liability under s. 370A. Holding a customer liable under s. 370A would exemplify the partial incorporation of the Swedish model on sex trafficking that has been greatly influenced by the radical feminist ideology. It would also mean that trafficked persons of any gender would have some recourse against the customers. But, if no liability is attached to the customers, then women can make use of s. 376 and other genders can employ s. 377 for recourse against the customers, and the punishments for both these provisions vary significantly. The paper would go on to evaluate how different provisions pertaining to sex trafficking in the IPC treat men, women, transgenders, and intersex persons differently and if such differential treatment is justified in the current social reality. Finally, the paper would discuss if the provisions should be gender-specific or gender-neutral.