Need for Gender Neutral Laws in India

Introduction:

In India, the culturally and socially built hierarchy between the genders in the society holds certain power relationships, where one of the subjects of the relationship has the power and the other does not. If we look carefully in certain scenarios then we can see that women are facing inequality in the society and men are facing inequality in the laws for their protection. So what are gender-neutral laws?

Laws should be made where all genders are treated equally in the eyes of law, either by explicitly stating every type of gender in law or by making the language of law gender-neutral. For an example, under the Protection of Children from Sexual Offences (POCSO) Act, 2012, a child has been stated as “any person below the age of eighteen years,” and no gender is specified under this act and by using the word ‘any’ it is denoted that equality to all the children regardless of their genders.[1]

In 2012, Justice Verma Committee favoured the gender-neutral laws completely and provided arguments in favour of gender-neutral laws in its report and the Committee’s view was upheld by the Criminal Law (Amendment) Ordinance 2013 which was published in The Gazette of India. To support equality in law, certain gender-neutral laws were formed. For example, sexual harassment, voyeurism and stalking were included in the IPC and certain amendments, additions and deletions were made to CrPc, IPC and Evidence Act. To everyone’s surprise, the ordinance on making all laws gender-neutral lasted for 58 days only and then it was repealed and replaced by The Criminal law(Amendment) Act 2013. Therefore, the current provisions of sexual harassment and stalking became gender-specific, where the man is the only perpetrator and women are the only victims.[2]

Legal Provisions for Women

To ensure that law and order are maintained in the society our lawmakers and policymakers made some special laws and provisions to safeguard women’s dignity and position in the society.

Wrongful Acts which are identified as Crime against women under the IPC, 1860 are:

• Kidnapping and Abduction under Section 363-373
• Sexual Harassment under Section 509
• Molestation under Section 354
• Physical and Mental Torture under Section 498-A
• Attempts and Deaths related to Dowry under Section 302/304-B

Some Special Acts and Provisions for women are:

• The Maternity Benefit Act, 1961
• The Employees State Insurance Act, 1948
• Women’s Reservation Bill, 2008
• The Sexual Harassment of Women at Workplace Act, 2013
• The Criminal Law Amendment Ordinance, 2018

Rape

Rape under Section 376, IPC is defined as sexual intercourse by a man with a woman under the six circumstances mentioned below:

1. Against the woman’s will
2. Without the woman’s consent
3. With the woman’s consent, when the consent has been obtained by putting her or any person close to her on the stake in fear of death or of hurt.
4. With the woman’s consent under false pretences, where the man knows that he is not her husband, and he gained her consent because of the false belief as she believed that the other man is the person with whom she is law­fully married.
5. With the woman’s consent, either by unsoundness of her mind or intoxication or administration of any stupe­fying or unwholesome substance where it is difficult for her to understand the nature and consequences of that substance.
6. Consent obtained from a woman under the age of 16 years or not obtained.][4]

Yes, on a scale of ten, in nine of the cases a man is the accused and a woman is a victim so it is considered that, only man can be a sole perpetrator and be liable for rape because women are only victims and a woman cannot be found guilty of rape under Indian Rape laws, unlike English law where a woman is equally held liable for the offence of rape as in case of a man. There is an irony, where the Indian lawmakers and policymakers thought that a woman can be held liable for abetment of rape so an abetment section (Section 109, IPC, 1860) was formed. Similarly, even transgenders are raped and our legal framework is silent about it.

Need of an Hour

With the hue and cry for equal rights of women in India, the jeopardy faced by men has been completely ignored. Offences like rape, sexual harassment and domestic violence are predominantly considered as gender-specific offences and an assumption is made that women alone are victims of these crimes. When the feminist protests happened in India or when the voice was raised for gender neutrality for women in all aspects and fields then why should men suffer from lack of protection by law and why should they suffer from inequality in here? Gender neutrality can serve the advantage to both the genders if it is disseminated properly. Currently, where a lot of countries are having gender-neutral laws and the number of offences is rising against men so there arises the need to address the issue of gender-neutral laws at the earliest.

Conclusion

It can be concluded that women, men and transgenders are equally exploited in India. Most of the laws in India only talks about male and female exploitations and in fact, the rape laws in India are female-centric so now it’s high time for the lawmakers and policymakers to include protection of transgender in those laws and therefore a requirement was felt as to bring a change in definitions of sexual offences to deliver a fair justice among “all” the genders in the society and not just two genders.  Males are always contemplated as the perpetrators in the offences because historically it is presumed that they cannot be raped or harassed and so the India system never made an attempt to make any laws and provisions for the male members in the society to seek legal recourse if they are raped or harassed.

Looking at the present scenario it is the time to see that even men and transgenders can be raped or harassed. There is no denying that women’s condition has improved, so protective laws and stringent punishments should also be advanced so that offences against females will be able to lower down its pace. The only solution to this problem is establishing and implementing gender-neutral laws so that a successful ratio is seen in these crimes.

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References:

[1] Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012, Ministry of Women And Child Development, (July 24^th, 2020, 1.15 p.m.), https://wcd.nic.in/sites/default/files/POCSO-ModelGuidelines.pdf.

[2] Sonakshi Awasthi, Is India ready for gender-neutral laws? , Indian express, (July 24^th, 2020, 2 p.m.), https://indianexpress.com/article/india/is-india-ready-for-gender-neutral-laws-4895122/.

[3] Diva Rai, Analysis of Gender Neutrality Laws in India, IP Leaders, (July 24^th, 2020, 5 p.m.), https://blog.ipleaders.in/analysis-of-gender-neutrality-laws-in-india/.

[4] Section 376 of IPC, 1860.