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INDIAN LAWS THAT SHOULD BE GENDER NEUTRAL BUT ARE NOT
Author: Sayani Pal, III year of B.B.A.,LL.B.(Hons.) from Law College Dehradun , Uttaranchal University
“Justice will not be served until those who are unaffected are as outraged as those who are .”
- Benjamin Franklin.
Gender–Neutrality is a never-ending debate in the 21st century. Legislatures intend to make society safe and make laws for the welfare of the public. Whereas the word “feminism” has an immense influence on society's patriarchal stereotypes. For the protection of women in society, initiatives have been made by both the Legislature and Judiciary. Criminal law and the Indian Constitution have given women an extensive amount of power to offend themselves. While the real cases are being pending on the courts under the false cases which are registered by the women to offend themselves and to fulfil some of their unscrupulous desires. Gender-specific laws are solely made for the betterment of society but is there any need for gender-specific laws in society? And if needed, how far is it justified to erode the interests of other gender identities?
This Article highlights the rising need for Gender Neutral laws in India. It is not restricted to the rights given to the women to offend themselves but to the extent of the rights for the men and transgender in the society. It is essential to understand the needs of society and also keeping in mind both the empowerment and the development of society.
CONCEPT OF GENDER-NEUTRALITY
Gender neutrality is also known as Gender neutralism. According to,The Oxford Dictionary, “Gender Neutrality”[i]is an adjective that is suitable for, applicable to, or common to, both male and female genders. It refers to the belief that regulations, language, and other social institutions should not differentiate roles based on people's sex or gender, and that men and women should be treated equally and without discrimination legally. Gender neutrality is basically where no discrimination takes place or in the eyes of law, all the genders existing should be treated equally. Law should be equal mostly in the issues against a person's modesty, voyeurism, rape, abuse, or sexual harassment.
In 2013 Arvind Narrain attempted to give the meaning of Gender Neutrality. He said, “perhaps disguises more than it communicates”. Further, he added three dimensions of gender neutrality –
Gender neutrality in the victim's case
Relative to the culprit, neutrality
Neutrality in situations involving detention, communal living, war, and conflict.
Traditionally society has a vague perception of the word ‘victim’. Unfortunately, the Indian laws have solely been based on the belief system that a victim of rape can only be a woman. The act of rape is always being considered to be the result of lust and desires but, undoubtedly, the rape mentality is also for showing off dominance and superiority in society. [ii]
While focusing on gender neutralism, we should not overlook the violence committed against the transgender community. Transgender is the most suffered community in society not only in India but in the whole world at large. On 15th April 2014, the Supreme Court's verdict on the case of National Legal Service Authority v. union of India takes tremendous changes in the transgender or third gender community. They got the legal identity and recognition as a separate gender.[iii]According to a PUCL-K report, they are not directly prone to the crimes, but because of their diverse identities, they are more exposed to sexual violence and attacks.[iv].
Irrespective of India being a democratic country there is no separate legislation or provisions made for the third gender community. Considering this, the Supreme Court in this famous landmark judgment or popularly known as the NALSA case, asked the central Government to reserve their seats under part III of the Indian Constitution which provides the fundamental rights to the citizens of India. According to this judgment, transgender people have the right to self-identity (as male, female or third gender ). Followed by this case Upper house has passed the Rights of Transgender Bill, 2014, but it never made it to the Parliament.
GENDER NEUTRALITY WITH RESPECT TO MALE AND FEMALE
Despite India being secular, there is class-related separatism, discrimination against victims. Part III of the Indian Constitution guarantees fundamental rights regardless of their race, caste, creed, ethnicity or gender, place of birth to safeguard the citizens from any harassment or abuse. So, everyone can live freely in their life.
Madhya Pradesh High court, in the case of State Govt. v. Sheodayal,(1956), stated that the modesty of a woman always need not necessarily be outraged by a man but can be outraged by a woman also under the purview of Section 354 of IPC[v]. Though this is the argumentative fact that there have been more incidences of women getting raped, while there are unreported cases that need to bring forth that the men being raped by men as well as by women[vi]. Section 375 is gender-biased because it only provides the rights to a female in rape suits. Men also feel the same emotions of depression or mental abuse as human beings and all the human rights are inherent to a human being from the day he/ she is born. If we go back to the centuries, Indian society witnessed the fact that the society always put men in the dominant position than the women that they biologically built stronger.
Rape legislation needs to be amended as well as, the country needs to introduce gender-neutral laws. Because most of the Indian Penal Code provisions showcase men as a criminal. It can not be denied after the society being the observer of the cases from Nirbhaya[vii] to Unnao[viii]rape cases that men were can be the perpetrator but not the only ones.
The Indian government should take up Justice Verma's committee’s suggestion that Indians need some gender-neutral laws but it was rejected. We should remember that men too can be the victim as well as a woman, crime has no gender and we should not discriminate upon it either on laws.
In the mid 20th century from newly built up social media platforms to the newspapers were flooded with the word, ‘Feminism’. Oxford Dictionary describes the word ‘feminism’ as ‘The advocacy of women's rights on the ground of the equality of the sexes.’[ix] That time was requisite for the equality of women. Gender neutralism is not anti-women, it is just acknowledging the fact about male victimization. However, the situation still has not changed for women in India but can not deny the progress that has taken place.
MEN’S RIGHTS MOVEMENT
India began the “Men’s rights movement” which branched off from the men's liberation movement in the early 1970s. This movement is for the protection of men from abuse and harassment. There’s no doubt that Indian rape laws and some laws are gender-specific and in favour of the women in the country.
This issue is not only with the rape laws but with the laws of adoption, anti-dowry laws, child custody, domestic violence, and most probably education. In the arena of Family law, it is indisputable that family courts are hugely discriminated against between men and women. It is mentioned under the Hindu Minority and Guardianship Act, 1956 that the custody of children below the age of 5 years must be given to the mother.
According to the SIFF,[x] that women misuse the legislations made for their protection from dowry death and bride burnings. Section 498A[xi] of the IPC penalizes the cruelty of husbands and their family only for driving a wife to suicide. Central on one of its applications mentioned that rape laws should not be altered as there is so much crime is rising against women in society.
INDIA’S GENDER-SPECIFIC LAWS
India has women-centric laws. Although these provisions are necessary for protecting women from the crimes and to empower them in the society to make sure that they do not face any segregation not only socially but also economically and politically. The statistics show that in every 1 out of 6 in the male population faces sexual harassment in the USA.
LAWS WHICH ARE GENDER SPECIFIED
Though in India many laws are gender-specific and only contribute to the protection of women in such crimes.
The Sexual Harassment of Women at Workplace (Prevention and Redressal ) Act, 2013:-
As the name suggests, it is a women-centric law. This makes it impossible for the males to appeal for justice. Forman (1982) finds that about 90-95% of men who are raped do not report it[xii]. Vishaka and Ors. v. State of Rajasthan[xiii] is one of the prominent cases where sexual harassment highlights. The Supreme Court promulgated some guidelines to spots sexual harassment which is called the Vishaka guidelines and it was held that workplace harassment is a violation of Articles 14, 15, and 21 of the Indian Constitution, which degrades women's dignity. Though there are statutes such as Article 14, 15, 16, 39, and 42,[xiv] which protect laws equally. But there are legal provisions that promote feminism in society, for the upliftment of women.
Under Indian Constitution
Article 51(A)(e)promotes harmony and the brotherhood that should be no practice of hurting the modesty of women. Article 243 (D)(3) says one-third of the total number of seats should be reserved for women and must be filled by the direct elections in a panchayat. Article 243(D)(4) stated a third of the total number of seats should be reserved for women in Municipality as chairperson in the panchayat office.
Crimes against women , under IPC[xv] :-
Section 300 – Murder
Section 354 – Molestation.
Section -354(C)- Voyeurism.
Section 415 -Cheating.
Section 498(A) – Physical and mental torture, cruelty against women.
Section 509 – Sexual harassments
Section 302/304(B) – Attempts and deaths due to dowry.[xvi]
The Criminal Law Amendment Act, 2013 has added some new sub-sections under Section 354 of IPC. Also, there are some special Acts made only for women in society to protects their interests, are following–
Women’s Reservation Bill, 2008
The Maternity Benefit Act, 1961
The Employees State Insurance Act, 1948
The Criminal Law Amendment Ordinance, 2018.
Though we support the Indian Governments for their indefatigable works towards empowering the women in the country.
VIEWS FOR COMPLETE GENDER NEUTRALITY
As Brigid Schulte rightly said, “I’m a big believer in education. If people learn the truth, they’ll see the benefit if they have gender-neutral policies.”
Though there is gender-neutral law as the POCSO (The Protection of Children from Sexual Offences Act ) Act, 2012[xvii], which states that irrespective of gender, anyone can be the victim of a crime. There should not be any discrimination based on sexes when it comes to deciding who is the victim in a trial. Article 21 of the COI provides the freedom to live life freely that no one can be deprived of living their life until the person’s freedom is restricted by the court of law[xviii]. But the cultural stereotypes show men are stronger in society, it promotes masculinity or the so-called ‘macho image’, which society forces them to follow the norm. This also portraits the men as the perpetrator in society at large. The Indian laws are wholly a women-centric approach, whereas, it can not be denied that women need protection but history has witnessed the registered cases on sexual harassments and abuses which turned false, whereas the laws are only made keeping in mind the welfare of the women itself.
The US Equal Employment OpportunityCommission’s report shows that 16.5% of complaints are from men on sexual harassment but India is mostly unknown about the fact as most of the cases are unreported due to the peer pressure of being a joke in the society as a male victim or break the so-called ‘patriarchal’ stereotype strong portrait of a man in the society. During the amendment of rape laws in 2013, Supreme Court Advocate Karuna Nundy told that "this is the way issues are on the ground. Women are raped more frequently than men, and trans individuals, as a percentage of the population, are subjected to a high rate of sexual abuse and rapeMen are raped as well, though to a lesser extent. On the other hand, a perpetrator is virtually always a man. In such a case, a gender-specific perpetrator and a gender-neutral victim were pushed for."[xix]
With the advancement of India, it needs gender-neutral laws. The oblivious fact is that the gender-neutrality bill was introduced in 2012 but it was suspended after it was reported by the Ministry of Home Affairs in a PIL which stated that only a man can be a violator and he can not be the victim, whereas Article 14 and 15 of the COI talks about equality[xx]. Though gender equality is the need of the hour, it should be clear that we should promote gender sensitivity, where everyone in the society respects each other and does not oppress the opposite sexes. The Indian Government should evolve the Indian laws according to the need and requirements of the society to keep the promise of Article 14[xxi], which entrusted equal protection in the eyes of law. Although the Indian Judiciary has never been the mute spectator of the country nor the legislature is intended to discriminate on the grounds of gender but unfortunately, it is sad to say that there is almost no law to acknowledge a man as a victim in Indian Society. The delay in making the law can harm society from its core.
[i] ‘Gender Neutrality, “Oxford Dictionary”.
[ii]Narrain, A. (2013). Violation of Bodily Integrity. Economic and Political Weekly, 48, (No. 11).
[iv]Peoples’ Union for Civil Liberties, Karnataka, ‘Human Rights violations against the transgender community’ (Report) (September 2003).
[v]Sneha Annavarapu, Hetero-normativity and Rape: Mapping the Construction of Gender and Sexuality in the Rape Legislations in India, open access, July – December 2013, Vol. 8 (2): 248–264, retrieved from Microsoft Word - snehaijcjs2013vol8issue2.doc (sascv.org), retrieved on 28th September 2021.
[vi]Ayeshea Perea, Why a gender-neutral anti-rape law isn't anti-women-Living News, Firstpost, retrieved on 28th September 2021.
[vii]Indian Kanoon .org, Pawan Kumar Gupta v. State (NCT of Delhi), 2020 MANU/SC/0050/2020, retrieved from Pawan Kumar Gupta vs State Of Nct Of Delhi on 20 March 2020 (indiankanoon.org), retrieved on 7th July 2021.
[viii]Express Web Desk, www.theindianexpress.com, Unna rape case: Here’s everything you need to know New Delhi, April 14, 2018, 10:30:18 pm retrieved from Unnao rape case: Here’s everything you need to know | India News, The Indian Express, retrieved on July 7, 2021.
[ix] ‘Feminism’, Oxford Dictionary.
[x]Save Indian Family Foundation.
[xi]Indian Penal Code, 1860.section 498A.
[xii] Forman, B. D. (1982), “Reported Male Rape”, Victimology: An International Journal, 7, 235-236.
[xiii]Indian Kanoon.org, Vishaka & Ors vs State Of Rajasthan & Ors on 13 August 1997, retrieved from Vishaka & Ors vs State Of Rajasthan & Ors on 13 August 1997 (indiankanoon.org), retrieved on 7th July 2021.
[xiv]Supra note xiii.
[xv]Indian Penal Code, 1860.
[xvi] www.legalserviceindia.com, Important Constitutional And Legal Provisions For Women In India –women’s Rights, retrieved from Important Constitutional And Legal Provisions For Women In India Article - Legal Articles in India (legalservicesindia.com), retrieved on July 6th, 2021.
[xvii]Tapasya, What does India’s Transgender Community Want? www.thediplomat.com, January 09, 2020, retrieved from What Does India’s Transgender Community Want? – The Diplomat,
retrieved on: 7th July 2021.
[xviii] Indian Constitution.art.21.
[xix]Monalisa Das, www.thenewsminute.com, retrieved from Should rape laws in India be gender-neutral? Experts weigh in | The News Minute, retrieved on 7th July 2021.
[xx]Indian Constitution.art.14, 15.