Open Access Research Article
Gender Neutrality With Special Refernce To Indian Legal System: A Comparative Analysis
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GENDER NEUTRALITY WITH SPECIAL
REFERNCE TO INDIAN LEGAL SYSTEM: A COMPARATIVE ANALYSIS
AUTHORED BY
- JOY PARIMALA
ABSTRACT
Gender neutrality is a fundamental
principle of equality that aims to eliminate discrimination based on gender.
However, the Indian legal system has traditionally adopted a female-centric
approach, overlooking the vulnerabilities faced by men and transgender
individuals. This research paper conducts a comparative analysis of gender
neutrality within the Indian legal framework, focusing on the Criminal Law. The
study critically examines the biases embedded within the Indian Penal Code
(IPC) and its amendments, which predominantly view women as victims while
neglecting the possibility of men and transgender individuals being subjected
to similar offenses. It highlights the prevalence of false cases against
husbands, sexual mistreatment of men, and the discriminatory presumption
regarding child legitimacy under the Evidence Act.
Through a comprehensive analysis, the
research explores the implications of the one-sided approach adopted by the
Indian legal system, including societal distress and an overall increase in
crime rates. It emphasizes the need to acknowledge crimes against men and
transgender individuals, aligning the legal framework with the constitutional
guarantee of equality for all citizens. By examining international best
practices and comparative legal systems, the study aims to provide
recommendations for achieving gender neutrality within the Indian legal system,
fostering a truly inclusive and just society that upholds the rights and protections
of all genders.
Keywords: Gender Neutrality, Indian Legal
System, Criminal Law, Gender Discrimination, Gender Equality.
Statement
of Problem
There is an urgent need for
gender-neutral criminal laws in India to address offenses committed against men.
Currently, Indian criminal law lacks statutory provisions to protect men's
rights, leaving them without effective remedies when they are victims of
crimes. Crimes against men often go unacknowledged, with a prevailing
assumption that such offenses do not occur. In contrast, crimes against women
receive due recognition and attention, while similar crimes against men are
often dismissed as fictional scenarios. This disparity highlights the necessity
for a more inclusive legal framework that ensures justice for all, regardless
of gender.
GENDER – A
BRIEF INTRODUCTION
The term gender and sex are sometimes
used synonymously but both term have different meaning. Gender is developed in
the process of socialization. Gender means multi-faceted socially, psychologically
and culturally constructed characteristics, roles, behaviours, expressions and
identities related with being a male and female, as well as associations with
one another. It has an effect in the way people see and perceive themselves.
Gender identification is a continuum process that can change over time; it is
neither static nor binary (girl/woman, boy/man).
Gender is so profoundly deep-rooted
in our traditions, our activities, our opinions, and our aspirations that it
seems natural to a person. Neither we are born with gender attributes nor we
possess them because we belong to a particular sex. It is something we do or
related to something we perform as the same is told by the society or the
community where a person lives[1].
Society has created certain norms,
behaviour and it expects people to behave and act in that manner. Gender is
something which one expresses by the way of speaking, dressing, walking,
behaving and while interacting with others. Every person has a dual binary
version of themselves: an external societal and public gender identity and an
interior personal sexual identity. Postnatal experiences shape one's gender
distinctiveness and awareness of how that individual is perceived in front of
public. It arises from observing society's norms and expectations in general,
as well as comparing oneself to others. Gender may not at all times match with
the biological sex of a person. There may not reconciliation between the sexual
identity and gender i.e. There may be genitals of one sex in the body (male)
and brain and the essence of the other (female). Gender is very personal in
nature and comes naturally to oneself.
The below lays down a few examples of
fundamental gender characteristics which are embedded in a child from an early
age, he or she is expected to behave in that manner and if he or she doesn’t
behave in that manner that person is termed as strange or queer.
·
Men are recognised as fathers and women are recognised
as mothers.
·
Blue colour stands for Boys and Pink colour stands for
girls.
·
Men are supposed to be bread earners and decision
makers while women do the house work and nurture the family.
·
Men earn more whereas women earn less. There is a pay
gap.
·
Men work as technicians, mechanics, electricians,
drivers whereas women work as nurses, air hostesses, weavers, knitters, school
teachers.
·
Boys play with automobiles and super heroes whereas
girls play with dolls.
Gender
features and qualities are different for both the sex, for example, the roles
male and female undertake and the beliefs put on each individual, differ
greatly amongst societal groups and transform with time. However, because
gender traits are socially constructed, they can be changed in ways that
improve a society's fairness and justification.
GENDER
IDENTITY
An individual's unique type of gender
is referred to as their “gender identity,” which may or may not resemble with
the sex they were given at birth. It also means person’s sense of their own
body, that may include actively choosing to have their bodily functions or
appearance altered through surgery, medicine, or other means, as well as other
gender-specific expressions like dress, speech, and mannerisms. A person's
gender identification is masculine if he feels himself to be a male and prefers
to refer to himself in masculine terms.
Nevertheless, he only has a male
gender role if he acts, dresses, and/or acts in a manner that is generally
male. Gender Identity is essential to one’s being as it is something natural in
nature. Natural impulse is connected to the natural intrinsic nature of a
person. There may be different gender identities, for example a gender,
cisgender, androgyne, bigender, gender queer, non-binary, omnigender,
transgender, gender fluid, butch, Gender expansive, Pangender etc
Equality, Equity and neutrality are
very often used interchangeably. However, each one of them signify a different
meaning and cannot be used synonymously.
GENDER
NEUTRALITY
The term neutral means impartial or
unbiased state of person or things, not being prejudiced, engaged or being
aligned towards either or any of sides. The status of being neutral is not
going towards any of the extremes or in strait jackets which is marking or
setting up labels, neither being in support or being against on any basis.
Seeing things as is, without any preferences or favours.
Gender neutrality or Gender
Neutralism signifies an idea or a concept that the policies, rules,
regulations, language, social institutions must avoid differentiating roles and
positions according to people’s sex or gender. A policy, programme, situation
or a conduct must not have differential positive or negative impact on gender.
Objective of gender neutrality is to eliminate gender distinction or bias and
gender inequalities prevalent in the society. It basically connotes with not
being associated with either men or women. It happens to be undeniable that men
and women are biologically unlike, the two anatomies exist that scientifically
and medically term an individual as male and female. But the sex must not
determine the gender roles, the mind-set and expectation from an individual.
The absence and detachment of the gender spectrum is referred to as gender
neutrality. Its objective is to deconstruct societal gender conceptions, as
well as gender boundaries and roles.
Gender neutrality entails letting go
of stereotypes and about a way of being than an identity. It plays a crucial
role in eliminating gender bias. Gender neutrality appears to be a method in
achieving parity and ending the ongoing fight between the sexes that obstructs
development by allowing the rights of one sex to trump over the rights of
another sex. The following analogy explains the difference between gender
equality and gender neutrality
·
Gender
equality: An institution, workplace or an office appoints the same number of
men and women.
·
Gender
neutrality: An institution, workplace or an office appoints the best person for
the job irrespective of the gender.
Gender neutrality seeks to provide a
distress free society, balance and stability amongst individuals. One must not
get undue advantage just because one belongs to a particular gender or sex.
Gender Neutrality aims to achieve the higher and universal goal of parity, rule
of law. It ensures human rights as it doesn’t lead to distinction or
differentiation between people and creates a just and fair environment for all.
It considers a person as a human rather than creating societal boxes.[2]
GENDER
NEUTRAL LANGUAGE
“Gender-neutral language” refers to
the use of non-sexist, inclusive, or gender-balanced vocabulary. The aim of
gender-neutral language is to eliminate the usage of terms that can be
interpreted as prejudiced, discriminatory, or insulting because they imply that
social gender is the norm. Gender-neutral language is inclusive and helps in
the lessening of gender typecasting, advancement of social transformation, and
aids in accomplishment of gender equality. Gender neutral language treats all
genders equally. It ensures that no specific gender is preferred unduly over
the other or at the cost of other. It eliminates the criteria of prejudices and
biasness. No category will lead to no differentiation. Gender neutral language
is in favour of all since it does not focus on any specific gender. There must
be gender sensitivity in language while framing, writing, translating, or
interpreting law.
The need and importance of gender
neutral language is increasing with the passing time. Major reasons of incorporation
of gender inclusive language is because the dogmatic approaches and orthodox
shackles are breaking, as in this global era women are at par with men. The
need escalates because of the gradual acceptance and acknowledgement to LGBTQ+
community by legislature, judiciary and the society. Gender-neutral
terminology, i.e. words that are not gender-specific and refer to humans in
general rather than women or men, can be used to avoid gender allusions.
·
Man,
Woman - Person, Individual, Adult
·
He,
She – They, Them
·
Himself,
Herself- Oneself, Them self
·
Husband,
Wife – Spouse, Partner, Significant Other
·
Boys,
Girls- Students
·
Men,
Women- People
·
Gentleman,
Ladies- Everyone, Folks
·
Mankind-
Humankind
Execution of gender-neutral
terminology is seen to be accompanied by undesirable responses and harsh
treatment for those who advocate for transformation. In Sweden third gender
pronounhan was used. Hon was used for she. The Oxford English Dictionary added
the word Mx. to be used instead of Mr, Mrs, or Ms. Mx can be prefixed to a
person’s name and can be used by an individual with any or no gender specific
identity. Gender neutral words help in removing the biasness as it cuts down
the scope of gender stereotype. No differentiation amongst various genders and
sex, it will automatically lead to a turmoil free society.
The constant tiff amid man and woman
will end by the usage of gender neutral language and will also lead to an easy
inclusion of LGBTQ+ community in the society. Gender Fair Language will create
no demarcations on the ground of gender as it will treat men and women
symmetrically. “Neutralization can be attained, for instance, by substituting
policeman with gender-unmarked forms police officer”. Words like accused,
victim, appellant, respondent, criminal, perpetrator, offender, petitioner,
defendant, judge, advocate, prosecutor, intern, assistant, editor, interpreter,
official, receiver, professor, speaker, trainee, officer etc are gender neutral
in nature.[3]
JUDICIAL
STEREOTYPE FACED BY MEN
It signifies the practise of judges
ascribing specific features, characteristics, or functions to a person only
because of her or his association in a specific group of people. It shows
habit, tendency or mind set of judges in having prejudicial preconceptions.
Equality before the law is necessary for access to justice, for necessitates
judicial impartiality and equanimity. In order to provide parity and fairness
for victims and survivors, judicial stereotyping must be eliminated.
Stereotypical thinking is observed in normal day to day life which affects a
person’s intellect and conscious. India has patriarchal society, which endows
men with burdensome notions. It is the social set up, which should be blamed or
needs a change as it creates feeling of animosity between man and woman. If a
man doesn’t fulfil the expectations set by the society, his masculinity is
questioned. Stereotypes are a result of nurture than nature.[4]
GENDER
NEUTRAL LAWS IN INDIA
Gender Neutral laws create a level
playing field for men, women and trans genders. It does not lead to favours or
inclination towards a specific gender. Gender neutral laws guarantee parity of
rights for each individual, irrespective of gender, such as equal protection
under the law and equal opportunities. Various gender-neutral laws are- “The
University Grants Commission (Prevention, Prohibition, and Redressal of Sexual
Harassment of Women Employees and Students in Higher Educational Institutions)
Regulations, 2015, Protection of Children from Sexual Offences (POCSO) Act, 2012,
Juvenile Justice (Care and Protection of Children) Act, 2015, Probation of
Offenders Act, 1958, The Information Technology Act, 2000, Protection from
Sexual Exploitation and Abuse (PSEA) etc.”[5]
1. “University
Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment
of Women Employees and Students in Higher Educational Institutions)
Regulations, 2015”
University Grant Commission has
notified India’s foremost gender neutral regulation on sexual harassment. “On
May 2, 2016 the Ministry of Human Resource Development (University Grant
Commission) issued The University Grants Commission (Prevention, Prohibition,
and Redressal of Sexual Harassment of Women Employees and Students in Higher
Educational Institutions) Regulations, 2015.”[6]
It was drafted with the goal of
prohibiting and preventing sexual harassment in educational institutions by
both men and women. Sexual Harassment is defined under section 2(k) of the
above mentioned regulation, while Regulation 3(d) of the same regulation lays down
that Higher Educational Institutions must act speedily in the aftermath of any
sexual harassment against staff and students of all sexes.
According to the Saksham Report 2013,
gender sensitization was identified as the weakest aspect in the process of addressing
issues on campus, despite being arguably the most important in terms of
fostering a positive ethos on campus and enhanced understanding of gender
equality and freedom, as well as harassment issues. This gender-neutral
anti-sexual harassment legislation will pave the way for future legislation
that will broaden the scope of understanding sexual harassment from the
standpoint of all individuals, regardless of gender. It is revolutionary in
many ways as it provides aid in the interpretation of hierarchical
discrimination and abuse, such as between student and teacher, employee and
employer. Furthermore, this gender-neutral anti-sexual harassment regulation
would contribute to an improved understanding of sexual misconduct and its
serious consequences for men and sexual minorities.
RECOGNITION
OF SAME SEX SEXUAL HARASSMENT
In “Malabika Bhattacharjee v.
Internal Complaints Committee, Vivekananda College and Ors”. the question
before Calcutta High Court was whether “the Sexual Harassment of Women at Workplace
(Prevention, Prohibition, and Redressal) Act, 2013? applies where the aggrieved
and respondent are of the same gender.[7]
Petitioners, laid down that the
complaint was invalid and claimed that, in light of Vishaka & Ors. vs.
State of Rajasthan & Ors., the question of 'gender equality' takes
precedence in determining whether a complaint falls within the 2013 Act's
peripheral. The topic of gender equality does not emerge in this instance
because the victim and respondent are of the alike gender.[8]
Respondents, laid down that “the
University Grants Commission (Prevention, Prohibition, and Redressal of Sexual
Harassment of Women Employees and Students in Higher Educational Institutions)
Regulations, 2015”, claiming that it covers a comprehensive range, allowing for
action against persons of the same gender in cases of sexual harassment. “They
further stated that this, when combined with the meaning of “respondent” in
Section 2 (m) of the 2013 Act, which refers to “a person” as a respondent,
shows that same-gender accusations are considered under the 2013 Act.”
The High Court laid down meaning of
“sexual harassment” set forth in Section 2(n) of the POSH Act cannot be viewed
in isolation; it must be interpreted in the context of the social context.
Sexual harassment is an offence that affects a person's dignity and is related
to his or her gender and sexuality; nevertheless, it doesn’t imply that person
of the same gender is not capable of offending the modesty or self-esteem as
defined by the POSH Act. Regardless of the sex or gender of the offender, an
individual of any gender may feel vulnerable if one’s modesty, respect as a
member of that gender is harmed by any of the acts or conducts listed in
Section 2(n) of POSH Act, 2013.Circumstances stated in Section 3(2) of POSH
Act, 2013 can be committed by people of either gender, even inter se. Thus High
Court recognised that a woman as respondent in a case of sexual harassment
against other woman. According to this approach, if sexual harassment or
violence is committed upon a man by a man or a woman, justice must be provided
to the male victim.
2. Protection
of Children from Sexual Offences (POCSO) Act, 2012
Various reasons leading to unreported
cases of Male Child Sexual Abuse are:
·
Orogenital
exploitation is widespread; as a result, there happens to be no forensic
evidence because salivary specimens of sperm aren’t accessible at the time of
recording. As noncontact abuse is uncommon in boys, the exploitation is more
severe.[9]
·
Girl
child sexual abuse are exposed inadvertently because of pregnancy, and family
abuse is terminated by marriage, while the revelation degree amongst boys
appears to be lesser and accidental revelation appears to be rarer, causing
abuse for years.[10]
·
Unlike
females, who are frequently violated in a heterosexual environment, males are
more frequently assaulted by men, causing confusion about the victims' sexual
orientation, numerous doubt whether or not they are homosexuals.
·
Patriarchy
stigmatises homosexuals as less than men, further postponing revelation.
Homophobia can lead to over sexualized conduct in male survivors, and boys are
more likely than girls to blame themselves for failing to halt the abuse.
Kathua and Unnao Rape incident
created an uproar in the society. “Criminal Law Amendment Act, 2018” made
several changes in the law. Several amendments were made in “Indian Penal Code,
1860, Code of Criminal Procedure,1973, Indian Evidence Act, 1872 and Protection
of Children from Sexual Offences (POCSO) Act, 2012.” Different provisions and punishments
have been introduced in Indian Penal Code according to the age of female
victim. Inserted sections are gender specific in nature. However, no such
differentiation on the basis of age has been done for the young male victim in
POCSO. In an instance of rape of girl child under 12 years, a provision of
Death Penalty was introduced, whereas there is no such provision in POCSO. Such
biasness in the law violates Article 14 of Constitution of India and lays an
impression that rape or abuse of a male child is less heinous or serious in
nature.
3. Protection
from Sexual Exploitation and Abuse (PSEA)
“United Nations Children's Fund
(UNICEF) is a United Nations (UN) distinctive programme devoted to supporting
national initiatives to improve children's well-being, nourishment, education,
and over-all welfare”. UNICEF started working in India in 1949. Its Protection
from Sexual Exploitation and Abuse (PSEA) policy lays down that Sexual
exploitation and abuse (SEA) and sexual harassment (SH) are both violations of
basic intrinsic rights. It is gender neutral policy which protects both men and
women from sexual violence. The strategy, policy and values postulate that
children, women, men, and communities must be treated with care, sensitivity,
self-esteem and respect, as well as receive aid without fear of exploitation or
abuse.[11]
Accountability, Prevention, and
Gender Equality are all used to create a zero-tolerance culture. World Health
Organisation is United Nation’s specialised agency, which is committed in eliminating
sexual exploitation and abuse in workplaces and operations. Sexual exploitation
and abuse are against internationally recognised legal norms and standards.
Such behaviours are considered significant misconduct by the WHO, and may be
grounds for disciplinary action, including summary dismissal and criminal
prosecution.
World Health Organization defined
Sexual Violence as “any sexual conduct, attempt to obtain a sexual act,
unwelcoming sexual remarks/ advances and acts to traffic, or otherwise directed
against a person's sexuality, by any person irrespective of connection to the
victim in any setting, including but not limited to home and work, using
coercion, threats of harm, or corporeal force, by any person irrespective of
relationship to the victim in any situation, including but not restricted to
home and work.” The definition uses gender neutral term ie person thereby
laying down that sexual offences can be committed by any person against any
person.[12]
UNITED
STATES OF AMERICA
The United States of America, a
federal constitutional republic, is a mosaic of 50 sovereign states, a federal
district, five major territories, and various minor islands. Its governance is
guided by a codified constitution, a federated system of administration, and
adherence to the common law legal tradition.
Each of the 50 states upholds its unique
legal framework. The U.S. Constitution, the bedrock of the nation, comprises
seven articles and numerous amendments. While the explicit terminology of
"equality" and "non-discrimination" is absent from the
text, their spirit permeates through the Fourteenth Amendment, ratified in the
year 1868. Equality, a foundational tenet of any legal order, embodies the
notions of even handedness, impartiality, fairness, and justice. The Fourteenth
Amendment revised a segment of Article 1, Section 2, and enshrined three
pivotal principles:
1.
The
Citizenship Clause bestowed citizenship upon all individuals born or
naturalized within the territorial bounds of the United States of America.
2.
The
Due Process Clause mandated that no state shall deprive any person of
"life, liberty or property, without due process of law."
3.
The
Equal Protection Clause decreed that no state shall deny any person within its
jurisdiction the equal protection of the laws.
The Fourteenth Amendment embodies the
tenet that "No state shall deprive any person within its jurisdiction of
the equal protection of laws." By explicitly delineating the states' role,
the amendment seeks to broaden the safeguarding of civil liberties by ensuring
parity for all, devoid of discrimination. Every individual must be treated
equitably, akin to others in analogous conditions and circumstances, bereft of
prejudice or partiality. Not only does the Fourteenth Amendment strive to
eradicate discriminatory practices, but the Fifth Amendment also endeavors to
eliminate disparate treatment. Collectively, these amendments serve as a
bulwark against inequity, fostering a society where each person is accorded
equal rights and opportunities, irrespective of their origins or personal
circumstances.
Sexual
Harassment
The term "sexual violence"
encompasses a range of sexual misconduct, including sexual harassment, assault,
or rape. In the United States, sexual assault is considered a felony offense.
It encompasses various forms of victimization distinct from rape, attempted rape,
or threatened rape. Acts such as unwanted sexual contact, groping, or touching
between the victim and offender, with or without the use of force, constitute
sexual assault. Underreported and underestimated, sexual violence against men
poses a significant risk to their mental and physical well-being. The
definition, terminology, and punishment for sexual assault vary across
different jurisdictions within the United States.
According to the Centers for Disease
Control and Prevention, sexual assault is defined as "a sexual act
conducted or attempted by another person without the victim's freely provided
consent or against someone who is unable to consent or refuse." The
National Institute of Justice, the research, development, and evaluation agency
of the United States Department of Justice, characterizes sexual assault as
"a wide range of unwelcome behavior that is attempted or carried out
against the victim's will, where the victim is unable to agree due to age,
disability, or the effects of alcohol or drugs, up to but not including
penetration."
Acts such as voyeurism,
exhibitionism, unintentional exposure to pornography, or the public display of
images captured in private settings without the victim's knowledge, also
constitute forms of sexual violence.[13]
The definitions of sexual assault
across various jurisdictions, such as New York, Washington, Arizona, Ohio,
Texas, California, and Oregon, are formulated in a gender-neutral manner. The
language employed in these definitions eschews gender-specific terminology,
opting instead for inclusive terms like "victim,"
"recipient," "former," "latter,"
"person," "individual," "another," and
"party." This deliberate choice of wording underscores the
recognition that sexual assault can impact individuals of any gender identity,
reflecting an inclusive and impartial approach to addressing this grave issue.
GERMANY
Germany is a federal, parliamentary,
representative democratic republic. The legislative authority resides with the
Bundestag (Federal Diet) and Bundesrat (Federal Council), which collectively
form the legislative body empowered to enact federal laws. The sixteen
constituent states of Germany are generally referred to as Bundesländer. Each
state possesses a written and codified constitution, and while federal law takes
precedence over state law, the states enjoy a significant degree of internal
autonomy. The German civil law system is rooted in Roman law principles and
incorporates elements of Germanic legal traditions.
Constitutional matters fall under the
jurisdiction of the German Supreme Court, which is accountable to the
Bundesverfassungsgericht (Federal Constitutional Court), the latter possessing
the power of judicial review. The German Constitution enshrines the
independence of the judiciary and the separation of powers. In contrast to
common law systems, the German legal framework is founded upon an comprehensive
compilation of statutes. In the realms
of criminal and administrative law, Germany adheres to an inquisitorial system,
where judges actively participate in the investigation of case facts, as
opposed to an adversarial system in which judges act as impartial arbiters
between the plaintiff or prosecutor and the accused.
UNITED
KINGDOM
The United Kingdom embraces a
constitutional monarchy system, wherein the sovereign, ascending to the throne
by birthright rather than election, serves as the ceremonial head of state. The
nation comprises four distinct entities – England & Wales, Scotland, and
Northern Ireland – each with its own judicial framework and legal profession,
while exhibiting notable similarities across their respective legal systems and
jurisdictions. Despite the absence of a formal codified constitution or bill of
rights, the UK operates as a parliamentary democracy.
Northern Irish law adheres to a
common law tradition, falling under the jurisdiction of Northern Ireland's
legal system, with ultimate civil and criminal appeals escalating to the
Supreme Court of the United Kingdom. This system bears resemblance to the
English legal framework, as the Kingdom of Ireland had adopted common law
principles. Conversely, Scotland maintains its distinct court structure,
partially independent and operating within its own jurisdiction. Scottish law,
while not entirely rooted in common law, is a mixed and pluralistic system,
exhibiting affinities with Roman-Dutch legal traditions.
One of the oldest and most revered
principles underpinning the common law in the United Kingdom is the rule of law
doctrine. Evolving to harmonize with the ethos of "equality before the
law" and the precepts of constitutional monarchy, which uphold
parliamentary sovereignty, this tenet advocates for the equal application of
the law. The eminent legal scholar, Professor A.V. Dicey, formulated the
concept of the Rule of Law, which has since become a cornerstone of the UK's
legal architecture.
The evolution of the rule of law
concept was elucidated in the seminal work "Introduction to the Study of
the Law of the Constitution," published in 1885. According to the renowned
scholar Albert Venn Dicey, no individual shall be subjected to punishment or
deprived of their liberty or property unless for a clearly defined breach of
law, established through due process before the ordinary courts of the land.
The primary tenet affirms the inviolability of the rule of law and prohibits
any form of arbitrary conduct. Wherever discretion exists, Dicey argued, the
potential for arbitrary behavior lurks, irrespective of an individual's status
or circumstances.
Dicey propounded that all citizens
are bound by the common law of the realm and are subject to the jurisdiction of
the common tribunals. One of the three core principles of the rule of law
espoused by Dicey is the equality before the law, transcending rank or
position. All classes of individuals are equally subject to the law without
discrimination. Regardless of any grounds, every citizen bears the duty to
uphold the same legal framework and falls under the purview of the same
judicial authority.
In the United Kingdom, the Parliament
enacted the Equality Act in 2010 with the prime objective of harmonizing
discriminatory laws and reinforcing the legal framework to ensure progress
towards equality. The Act consolidated and superseded various previous
legislations, including the Equal Pay Act of 1970, the Sex Discrimination Act
of 1975, the Race Relations Act of 1976, the Disability Discrimination Act of
1995, the Employment Equality Regulations concerning religion, belief, sexual
orientation, and age, as well as a substantial portion of the Equality Act of
2006 and other ancillary legislations. The Equality Act safeguards individuals
from discrimination on various grounds, promoting equality in the application
and administration of the law.[14]
CONCLUSION
A country cannot function without a
smooth society. Legislation is a reaction to a social and collective outcry.
Men and women form foundation of a concrete family and thus a society.
Equality, appears to have lost its significance to our lawmakers, society,
activists and judiciary. Unquestionably, the legislature or the judiciary does
not propose to discriminate against a victim of sexual offence because he is
male, but unfortunately, there is no acknowledgement of men and trans gender as
a victim of domestic violence, rape, sexual harassment, stalking etc. Both
crime and our laws should be gender-neutral. The same motivations drive
criminal behaviour in both men and women. Anyone who violates the law must be
made liable to the consequences outlined in the Code, and the law should not
make any distinctions between different types of offenders on basis of gender.”
All citizens possess self-esteem, respect and to provide a dignified
environment have the should be a “egislative necessity”.[15]
When the law recognises persons of
all genders, it must likewise lay down for the deterrence and safeguard from
sexual assault, for everyone who falls within that spectrum. The Bench failed
to see that by refusing to remark on making Indian Penal Code gender neutral in
nature, it was defying values given in the NALSA decision. Making law for
sexually violent offences (particularly rape, sexual harassment, and sexual
assault) leads to addressing of transgender community's requirements. To make
the world a safer place for everyone, we must equally protect our sons and
daughters. The patriarchy's predominance may be to blame for the low rates of
reporting and seeking aid in India. The reality is that guys who are expected
to be superior due to their nature overlook oppression of victims, regardless
of gender and there lies uncalled beliefs on them to ignore negative aspects of
violence and to disregard such instances. It's time for society and our
lawmakers to recognise that sexual crimes and abuse know no boundaries and are
genderless. The severity of female sexual abuse and assault is not diminished
in any way by this. It's merely raising attention to the fact that there
shouldn't be any bias when delivering justice to those who seek the same.
Gender neutrality will eliminate
inadvertent gender discrimination and to provide equal protection to all
genders. The family arrangement and society are transforming, and the same is
true of gender violence norms and ideals. Men often suffer physical and mental
annoyance because of their partners, in-laws and spouses.
Gender disparity has a profound
impact on society throughout history, marketing, upbringing, education, and
parenting approaches. To promote gender neutrality, Socio- cultural and
socio-legal approaches must place a strong focus on the use of terminology that
is inclusive of all genders and on equality advocacy.
[1] Eckert, Penelope, McConnell Ginet
and Sally. Language and Gender. Cambridge and New York: Cambridge University
Press, (last accessed on Jun 5, 2024).
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Article Information
Gender Neutrality With Special Refernce To Indian Legal System: A Comparative Analysis
Authors: JOY PARIMALA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/19
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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