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Gender Neutrality of Laws: The Future of Social Justice in India

This article analyzing the current protective legislation’s in India in the light of gender neutral laws and conclude by suggesting the necessary changes that can be implemented so as to protect all the genders equally under the law and not protecting only a single class at the cost of the other.

INTRODUCTION:

The Indian Constitution, the largest in the world, provides for each intricate matter that concerns the people of this country, be it citizens or even otherwise. It also includes various constitutional provisions which focuses on the concept of equality, dignity, liberty as fundamental rights under article 14, 19,21. Constitution provides for and protects all the various sections of society. Amongst these elaborate provisions, there are gender-neutral and gender-specific laws.

Gender-neutrality laws are laws that do not specify requisites as to the perpetrator or the victim. That is, these are applicable to anyone who commits a crime irrespective of their gender. Ex- murder, theft and embezzlement are all gender-neutral laws.

Gender-specific laws, on the other hand, are laws that are more limited in nature. These laws are very few in number and can usually only be evoked by women Ex- rape, domestic violence and so on.

There have been various debates raging for recognising gender neutral laws which provide relief and remedy where the victims and perpetrators may be of any gender or sexual orientation.  Till now there are only 4 countries in Asia have gender-neutrality laws in place and still India is not ready for this yet but now there is immense need of gender neutral laws in the Indian society to balance and attain the social justice and equality.

EFFORTS OF THE VARIOUS COMITTEES TO ATTAIN GENDER NEUTRAITY OF LAWS:

Justice J.S.Verma Committee, 2013

After the Delhi Gang Rape case, Justice Verma Committee was setup which came to a conclusion and stated “Since the possibility of sexual assault on men, as well as homosexual, transgender and transsexual rape, is a reality, the provisions have to be cognizant of the same” Neutrality with regards to perpetrators, in reality even women can be subjected to commit crimes is very comfortably ignored by Indian judiciary, executive and even by the society.[1]

Justice Malimath Committee, 2013

This committee was appointed to suggest reforms for Section 497, Indian Penal Code, 1860 through its report suggested to make section 497 gender neutrality and even stated that marital infidelity must be taken seriously in the society, similar treatment to both the man and a woman should be taken into consideration[2].

KTS TULSI PRIVATE BILL, 2013

Postponed in 2013 amidst the outrage following the Nirbhaya rape case, the issue of making sexual offences gender neutral was once again by Senior lawyer and Parliamentarian KTS Tulsi he introduced a private members bill before the Rajya Sabha to introduce amendments in the criminal laws to make sexual offences gender neutrality. —– Tulsi said.

The bill proposes amendments in the Indian Penal Code (IPC), the Criminal procedure Code and the Indian Evidence Act to ensure that the words “any man” and “any woman” in the sections relating to sexual offences in the laws are changed to read as “any person”.[3]

WHY THERE IS A NEED TO MAKE THE LAWS GENDER NEUTRAL?

Women these days have used these laws against man as a vendetta for creating unnecessary problem. Even after marriage men has to pay alimony and women can file dowry and police can keep family of men in jail without substantial evidence. Therefore, life of men and his family are destroyed by crooked woman who enjoy undue advantage of this nonsense law.

Offences that take place against men sexually cannot be sidelined in the name of protecting women. Legislations that are enacted in India currently penalize only the male gender and not the female for crimes such as sexual assault, stalking, adultery, voyeurism, rape, domestic violence, dowry death, harassment at workplace etc. None of these pro women legislations are framed on the basis of scientific results as to why they are tilted to favour only a single gender?

Report of Crime in India, 2012 Statistics by Ministry of Home Affairs,[4] Another Report of Crime in India, 2012 Statistics by Ministry of Home Affairs on Section 498-A of Indian Penal Code, 1860 found that a total of 197,762 people all across India were arrested in that particular year and, only 14.4% were convicted. Now, this brings us to the question of aggressive misuse and frivolous complaints being filed against men.

In 2004, the National Family Health Survey (NFHS) has found that about 1.8% or an estimated 60 lakh women have perpetrated physical violence against husbands without any provocation. Moreover, recently, the Centre for Civil Society (CCS) found that approximately 18% of Indian adult men surveyed reported being coerced or forced to have sex. Of those, 16% claimed a female perpetrator and 2% claimed a male perpetrator.

A Shift to Gender-neutral or Gender-specific Offence

There are numerous laws which assumed that man is the only culprit and women is always a victim or one can say the women centric laws.   So the aspect of gender neutrality is required in following aspects:

Neutrality with respect to

  1. the victim
  2. the perpetrator

Suggested Reforms

Men should have the equal access to come into the open just like women and be not judged for their manhood for reporting crimes against them. The truest and fullest form of equality will be the time when we are standing at the doors of the law to seek justice and the law is stringent enough to punish the offender based on the crime committed and not based on their gender. In the light of this, here are the following suggestions under which laws should be gender neutral:-

FIRSTLY, with respect to Sexual Harassment at workplace and the Act is the The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 that is gender specific to protecting only the women from sexual harassment, taking into consideration the nuances of reforming the law, the various institutions and organizations at the grass root level should take into consideration that even women employees or women superiors can sexually harass men employees.

Taking into consideration the current employment opportunities and women reaching at top positions over men, the redressal of sexual harassment of at workplace should be made gender neutral. Men workers or employees must be able to raise complaints without the fear of ridicule.

SECONDLY whenever we discussed about domestic violence and dowry death the preamble of the act concern about Protection of women only. Even section 498A and 304B has been misused and used as a weapon against the innocent men because of which they suffer from mental trauma including societal insult.

As provided by law these sections are non-boilable and non-compoundable, cognizance and directly assumes the guilt on the part of husband and his family. Resulted that the whole family has go through from the trail procedure and court orders even they are innocent and falsely charged by the women. The law uses the word “husband” instead of it being „spouse‟ to make it gender neutrality. The provisions contain a principle violation of the criminal justice system wherein all accused are innocent before proven guilty, but in such cases the husband is considered to be guilty until proven innocent. A stringent provision which is gender neutral must come into the frame so as to punish false accusers.

THIRDLY with respect to rape reforms, the recommendations of the Verma Committee need to the recommendation must be put forth as law. Only by normalising the rape of males into the law can men come forward with complaints. This also has a psychological impact, that is if men too are included under the definition of rape, they too will realize that such a heinous crime can be committed even against himself by another person a male or female and that, the same pain and agony will be faced by him too and thus if it deters a male form committing such an act, we can curb this offence.

Male rapes happen to show forth domination and not always sexual pleasure seeking. Crimes like rape and murder happen irrespective of gender, caste, colour of skin, nationality etc. and most importantly irrespective of sexual orientation. These crimes must be reported and an environment where the plight of men too is heard without the fear of being labelled as losing his manliness if such cases are reported. The current definition of rape as envisaged under the Indian Penal Code is unable to protect male rape. An all-encompassing definition of rape and sexual assault must be brought in as the need of the hour.

Lastly, the Criminal Law (Amendment) Act, 2013 brought in new sections among which Sections 354C and 354D – the offences of voyeurism and stalking were added to include only men being penalised for such offences making it gender specific while the same amendment brought about acid attack which was gender neutral.

Recognizing a few offences to be gender neutral and others to be gender specific making only the man liable is what is contended to be unreasonable because the same acts can be done by women also. The law is suggestive of the fact that only men can commit these wrongs and assume that men can never be the victims of such acts. Stalking and Voyeurism can never implicate a woman, as such an act done by a woman is not constituted as an offence. the law makers need to realize that crime is a crime and there are acts of crime just like other act like murder and homicide that can implicate women also. The legislature has to note that protection of one class of the society does not come at the cost of penalising or not protecting the other class of the society at all.

CONCLUSION:

As rise of feminist movements clearly show women advocating and being successful in obtaining equality. Though gender neutral laws are very far from reality but current scenario in India make us feel that it is high time, we identify female perpetrators and give justice to affected men[5].

The time is now, the hour of need to reform old archaic law has come, wherein changes in the law has to be made so as to bring the society to change its thinking, into normalising male victimisation and insert words like “any person” or “any spouse” in the place of any man or wife or woman. And this will ensure equal accessibility of justice to all persons irrespective of the gender and irrespective of the crime and irrespective of its gravity or seriousness

Bringing in Gender Neutrality laws would be paving way to make the society think in a forward looking manner so as to enable the society to think that men will not lose their masculinity if they bring out their instances of such abuse into the open.

In conclusion, I would like to merely quote Mr. Thomas Jefferson who said, “Nothing is so unequal as the equal treatment of unequal people.”

The time has come for the banner of justice to be waved with the thread of equality and not gender targeting.

 

[1] Justice J.S.Verma, Justice Leila Seth and Gopal Subramaniam, REPORT OF THE COMMITTEE ON AMENDMENTS TO CRIMINAL LAW 2013, 416.

[2] The Justice Malimath Committee Report, 2013

[3] KTS TULSI PRIVATE BILL, 2013

[4] Report of Crime in India, 2012 Statistics by Ministry of Home Affairs, http://ncrb.gov.in/StatPublications/CII/CII2012/Statistics2012.pdf

[5] TNN, Activists join chorus against gender neutrality rape laws. THE TIMES OF INDIA, (March 9,2013) http://articles.timesofindia.indiatimes.com

This article is authored by Piyushi Garg, Student of BA.LL.B (H) at IIMT and School of Law(GGSIPU), Delhi.

Also Read – The Concept of Gender Neutrality.

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