Posted on: November 7, 2020 Posted by: Radhamani Saxena Comments: 0
AUTHOR: Ayushi Jaryal, Army Institute of Law, MohalI
INTRODUCTION

With the most exhaustive and elaborate Constitution in place, India also has a fiendish number of crimes happening all around. Although there The Indian Penal Code[1] lays down a number of offence and their punishments, some of which are gender neutral as well as gender specific. But with a recent wave of social activism there has been a demand for gender neutral laws in the society for crimes that that are sexual in nature.

MEANING OF GENDER NEUTRALITY

Since it is known that a society is dynamic in nature, there has been a paradigm shift in the phenomenon of gender assumption as well. Originally, the definition of ‘gender’ only encompassed a person who belonged to the category of female and male, however, now the term has become more fluid and should not be confused with the biological term ‘sex’. The definition of ‘gender’ should include transgender, eunuchs[2], people of the ‘intersex’ community who have both male and female reproductive organs or even persons that fail to identify themselves with any of the sexes.

Therefore, as there is no exact definition of ‘gender neutrality’ given anywhere with the above stated in mind one can say that the concept of ‘gender neutrality’ is an idea that laws, policies and social institutions should avoid gender assumption and should refrain from distinguishing roles on the basis of gender or sexes.

CRIMINAL LAWS IN INDIA AND GENDER NEUTRALITY

Even though most of the laws in the IPC[3] are gender neutral such as theft, embezzlement etc, there are still some laws which assume that the perpetrator can only be a man. The following enumerated offences only provide for punishment if the crime is committed against a woman:-

  1. RAPE

The offence of rape is defined under Section 375 and Section 376 of the IPC. The crux of this offence is stated in the former section, it states that a man is said to have committed rape on the following six grounds:-

  1. Against her will.
  2. Without her consent.
  3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
  4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.
  5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
  6. With or without her consent, when she is under sixteen years of age.[4]

Along with this, the next provision lays down the punishment i.e. simple or rigorous imprisonment for a term which shall not be less than seven years but which maybe for life or for a term extending up to ten years, and shall also be liable to fine.

HISTORY OF RAPE LAWS AND TRADITIONAL NOTION OF RAPE

There have been many cases and important judgments in the past that have shaped Rape laws in India. Two of them that played a major in doing so are firstly, the notorious Mathura rape case[5] of 1972. In that case, an eighteen years old dalit girl was raped and molested by two constables at a police station. When the matter reached the Supreme Court, the accused were acquitted on the ground that there were no injuries found on the body of the victim she raised no alarm and since she was habituated to sexual intercourse, she could have incited the policemen to have intercourse with her. This judgment attracted wide spread criticism and backlash from the public. But the court held its ground and stated that there was no Locus Standi[6] in the case to adjudge in the favor of the victim. Pressure set in on the Government of India to amend laws relating to rape therefore, The Criminal Law Amendment Act 1983 came into existence. According to this amendment, if a woman alleges that she has been raped it will deemed to be true unless proved otherwise, thus, shifting the burden of proof from the accuser to the accused. It also added the provisions of custodial rape, in-camera trials and the prohibition on the victim identity disclosure.

The second case is the heinous Nirbhaya case[7] of December, 2012. This case also brought about another amendment. This introduced widened the definition of rape and introduced many new offences in the IPC such acid attacks, stalking, voyeurism etc which brought about many positive changes but only for women.

The lack of gender neutrality in rape laws is attributable to the traditional notion of rape due to which only a man can be seen as an aggressor as he strong and masculine and a woman who is viewed as a damsel can be victim, therefore clearly assuming that a man cannot be the victim and a woman cannot be an aggressor or a man cannot be an aggressor against his own kind. However, a survey conducted on adult Indian men suggests otherwise, it revealed that one out of every 5 males is raped or molested at least once in their lives and in few cases the offenders are women too. Various cases of rapes and sexual assault against transgender or non binary genders have also come to light. Perhaps the underlying is as mentioned earlier, the view and definition of ‘gender’ in our society.

  1. DOMESTIC VIOLENCE

Sections 3049(b) and 498 of IPC and backed by a whole Protection of Women from Domestic Violence Act, 2005, women get full protection and remedies against dowry deaths and domestic violence. Spousal abuse is as real a problem for men as it is for women. Though unfortunately, there is no specific remedy for men like women.

  1. SEXUAL ASSAULTS

Sexual Assaults include touching any person sexually against their will. Sexual assaults can be against individual of any gender; however, the criminal law in our country only recognizes the following against women:

  1. Molestation- Section 354 IPC
  2. Sexual Harassment- Section 509 IPC
  3. Sexual Harassment at work place- Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

GENDER SPECIFICITIES VS GENDER NEUTRALITY IN LAWS

Naturally there are conflicting views on the topic, one that feels that laws that are specific to a gender is important and the other supports gender neutrality in laws. People of the first school of thought argue that “The use of the phrase ‘gender-neutral’, while appearing to be neutral and equitable, actually could be a cause of grave injustice and conceal the harsh vulnerabilities that certain persons have to live with”[8] this was said by Vrinda Grover, a lawyer and Human rights activists. They believe that people are under the wrong impression that gender specific laws are bias in nature on the contrary it is to remove the bias and uplift the women of society and can also be termed as protected discrimination.

The other school of thought, argues that a law should render equal service to each and every member of the society which is precisely what is stated in the Article 14[9], Article 15[10] and Article 39-A[11]of the Indian constitution. The result of having gender specific laws is, firstly, it completely violates the basic principle of natural justice i.e. Ubi jus, ibi remedium which means where there is a right, there is a remedy. To elaborate further, according to this principle each breach should have a remedy, but sadly if a male goes through a sexual assault he will have no remedy. Second, gender specific laws create bias and completely negate the rights of the other community.  Third, giving special protection or status does not uplift or empower woman but reiterates the fact that there is hardly any equality and that woman are portrayed as the weaker se in the society. In fact, Justice Verma Committee, 2012[12] was fully in favour of gender neutral laws and the Criminal Law (Amendment) Ordinance 2013 upheld the views of the committee but was later repealed.

Moreover, while it is being debated whether gender neutrality should prevalent in criminal law the government  has taken a step in the direction and introduced paternity leave for new fathers, however, there still a vast sexist gap in the policy between the amount of leave given to man and woman which still needs to be addressed and more importantly reservation of woman- a person should earn a place in social institutions based on their capabilities and not their gender.

CONCLUSION

With the widening scope of the society, it is very clear that certain laws need to be more gender neutral in order to achieve equality and uphold basic principles of natural justice. Everyone should get protection but not at the cost of another community. Countries like Canada, Finland, Australia, The Republic of Ireland and most states of United States of America have already adopted gender neutral laws to work toward a fairer society, and it’s high time India follows suit.

 

REFERENCES

[1] The Indian Penal Code,1860

[2] “hijras” or the “kothis”

[3] Indian Penal Code

[4] https://indiankanoon.org

[5] Tuka Ram And Anr vs State Of Maharashtra 1979 AIR 185, 1979 SCR (1) 810

[6] Legal standing

[7] Mukesh v. State (NCT of Delhi)

[8] In an interview with Indian Express

[9] Equality before Law

[10] Prohibition of discrimination

[11] Free legal aid to poor and weaker sections of the society.

[12] Committee submitted its report on January 23, 2013.

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