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GENDER NEUTRAL LAWS - A CRITICAL STUDY - BY APOORVA UPMANYU AND ANSHUL RANA
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GENDER NEUTRAL LAWS: A CRITICAL STUDY
Authored by - Apoorva Upmanyu and Anshul Rana
Gurugram, Haryana, India
ABSTRACT
Following the infamous Delhi Gang Rape incident in 2012 and the
much-talked case of Triple Talaq, there was an urgent need to condemn and make
stricter laws against such crimes against women. The government in gang rape
case formed a committee, chaired by former Chief Justice of India Justice
J.S.Varma, to suggest guidelines for women's protection, which was to take the
form of the Criminal Law (Amendment) Act 2013, and gender-sensitive or
gender-specific laws were framed as a result of giving in to feminist pressures
opposing gender neutral laws recommended by the committee. The author scrabbles
around and analyses the current protective legislation in India considering
gender-neutral laws and concludes by suggesting the necessary changes that can
be implemented so that all genders are protected equally under the law.
KEYWORDS: Delhi Gang Rape case, Triple
Talaq, Chief justice of India, Criminal Law (Amendment act), Gender-Sensitive,
Legislation
ABBREVIATIONS: Sec: Section, IPC:
Indian Penal Code, M.P: Madhya Pradesh, S.C: Supreme Court of India, Art.:
Article, I.E.A: Indian Evidence Act, LGBTQI: Lesbian, gay, bisexual,
transgender, queer, intersex.
INTRODUCTION
1.1 OVERVIEW
According to our Indian legal system,
only men can be found guilty of rape under Indian Penal Code Sec. 375 and 376,
and only women can be the victim. The laws governing stalking, being
voyeuristic, and sexual harassment are also gender-specific, meaning that only
women may be the victim and only men may commit the offenses. But the law
governing acid attacks is gender neutral as it involves the word “whoever.” The
idea that a rape victim can only be a woman is the foundation of Indian law.
This results from the presumption that rape is a solely sexual act performed to
satiate the sexual desire of the offender/perpetrator. It is a common
misconception that women are always the victims and men are always the
perpetrators, but the reality is that males are also victims of sexual offenses
and false allegations. India's antiquated rules regarding sexual offenses and
how they deny males and transgender people access to justice is a genuine issue
that needs to be taken into consideration.
As we all know, Justice, Liberty, and
Equality in areas of status and opportunity are guaranteed to all people by the
Preamble. Every person is accorded equal protection under the law by the state
within Indian Territory, according to Article 14 of the Constitution. States
cannot discriminate only based on sex, according to Art. 15.
It goes beyond equality and gives
women more power through positive discrimination in accordance with Article
15(3), which grants the state the right to enact any special law or regulation
for the advantage of women. By giving all people the same opportunities in
terms of employment, Article 16 furthers the Preamble's mission. The 73rd
constitutional amendment mandated that women must hold a minimum of one-third
of the elected seats. “But is this the actual situation on the ground level?
Are all these laws being put into practice, or are they only being employed as
a tactic to quiet women who speak out in support of their rights?”
But State has disregarded and ignored
the issue of male/transgender sexual victimization in institutional settings
like jails, juvenile detention facilities, etc., which has caused the nature,
dynamics, and effects of male and transgender victimization to worsen. Modern
scholarly and judicial debates have ignored, and frequently criticise, the idea
of male and transgender sexual victimization. Even though men are typically
thought of as sexual aggressors, there has been an increase in the experience
of male victims with the penal system. Aggravated rape is a crime under Section
376 of the IPC when the perpetrator is in a position of authority or dominance.
If the woman in her testimony asserts that she did not agree in such a case of
aggravated rape, Section 114A of the IEA of 1872, as amended, has changed the
presumption to that of guilt. Again, it is wrong to assume that only women and
no other identities may be dominated by those in positions of power. We are
aware that coercive sexual activity with men by males is illegal under Section
377 of the IPC since it violates nature's order. A gender-neutral rape law has
been advocated by the Law Commission of India in its 172nd report. According to
others, this scenario also requires adherence to the fundamental rights of
equality before the law and equal protection of the rights that are enshrined
in our Constitution. One could argue that all identities would be equally
protected only if there were gender-neutral rape laws. The reality of the
culture we live in must is not forgotten as Unquestionably; women are the group
in society that is most at risk.
Thus, men, women, and the LGBTQI+
group are all considered to be human beings and as such, are the primary focus
of the law. In addition, we currently ipso facto believe that all our
laws are gender-neutral and do not distinguish between any genders as being
special or the norm.
1.2STATEMENT OF THE PROBLEM
Since gender neutrality in Indian
culture has always been a problem, it is crucial that the appropriate legislation
is passed and effectively implemented. Even though rape is a horrible crime in
which the victim's gender is immaterial and hence the consequences for the same
should be the same, India lacks adequate rape legislation for males and the
transgender population as well as for women. In addition, there are other
factors, such as differential remuneration for the same labor based on gender.
1.3 OBJECTIVE OF THE STUDY
This study's objective is to evaluate
whether India's gender-specific rape statute needs to be changed to a
gender-neutral one. In this regard, the following are some pressing issues that
must be resolved:
·
What
comprises gender neutrality?
·
Whether
a gender-neutral legislation would be harmful to the population's most
vulnerable group ie., women?
·
Whether
the remedy is to make it gender inclusive for the perpetrator solely; power
disparities developing in community, war, and custody circumstances.
·
Draw
attention to the fact that some current laws are not being implemented the way
they are expected to be.
1.4 HYPOTHESIS
The issue of sexual assault against
men and the transgender community must be addressed immediately.
1. It would be detrimental to the interests
of female rape victims to make the legislation entirely gender neutral. Making
the legislation gender specific for the offender and inclusive for the victim
would thus be a solution.
2. There must be a different rule for
caste-related, inter-communal, and war crime-related aggravating circumstances.
2. MEANING OF GENDER NEUTRALITY
The idea of gender neutrality
underlines the equal protection of men, women, and persons of any other gender
without prejudice. Three aspects of gender neutrality are provided by Arvind
Narrain (2013).
·
Respect
for the victim's gender without discrimination
·
Remaining
impartial toward the offender
·
Independence
in war, conflict, and community settings.
2.1
GENDER
NEUTRALITY (IN RELATION TO PERPETRATOR)
The issue of whether a woman may
perpetrate a crime has been a subject of constant discussion. People who spoke
in favour of the motion claimed that it is biologically impossible for women to
rape males, especially in a patriarchal environment, as stated by Susan
Brownmiller. Once more, those opposed to the motion argued that it was not
physically impossible. In instances like State Govt v. Sheodayal (1956.)[1] Women-on-women
rapes became known in which the MP HC stated that a woman's modesty might be
violated by another woman under the authority of Section 354 of the IPC. The SC
addressed the issue of whether a woman can engage in gang rape in the landmark
case of Priya Patel v. State of M. P[2].
The Supreme Court held in Yusuf
Abdul Aziz v. State of Bombay[3]
that women may not be charged with adultery under IPC provisions by citing
Article 15. The fact that the clause is founded on gender stereotypes,
according to which women may only be victims and not offenders of sexual
assaults, was not taken into consideration. In a later case, Anuj Garg v.
Hotel Association of India & Ors[4],
a bench consisting of S.B. Sinha and Harjit S. Bedi J. declared that
preconceptions of gender roles cannot be used as the foundation of the law,
cannot bestow uneven advantages, and cannot burden any one gender.
As a result, a provision that had
long been upheld as protected by Article 15(3) and forbade women from working
as bartenders for their own gain was repealed.
2.1.1 GENDER NEUTRALITY (IN RELATION TO VICTIM)
It is disappointing that the way rape
is seen by Indian law is predicated only on the idea that the victim of rape
must be a woman. This assumption entirely ignores the fact that rapes and
sexual assaults against males and transgender persons are just as common as
crimes against other individuals and do not carry the same weight as assaults
against women or rapes against men. As a result, gender neutrality is not
present, and it should be underlined that the Punishment for such horrible acts
should be similar regardless of the victim's gender.
Further, it is often believed that
rape is just an act of sex committed to gratifying the perpetrator's desire for
sex, which is in direct opposition to the rising understanding that sexual
assault is not only a manifestation of passion but also of domination over one
caste or group religion. Therefore, there is no justification for why males or
transgender individuals cannot be raped or otherwise abused. Corresponding to
this, the precedent set by the historic case Vishakha and others v. State
of Rajasthan[5]
protected the rights of women who had been sexually assaulted at work, but
similar legislation for males or transgender individuals has not yet been
discussed.
2.1.2 GENDER NEUTRALITY (IN RELATION TO CUSTODIAL, WAR,
COMMUNAL AND CONFLICT SITUATIONS)
Rape has repeatedly been adopted as a
method of fear and control in caste, class, and community conflicts as well as
in custodial settings. It is crucial to understand why these unique
circumstances should not be compared to everyday life. In addition to being a
male, female, or gay person, he or she belongs to a certain ethnicity, caste,
and/or religion. The identification that distinguishes the perpetrator and the
victim in a typical circumstance or non-aggravated crime is gender. The
perpetrator's gender is irrelevant under extreme circumstances like war,
violence, or captivity, where caste, race, or religious identity becomes
dominant. Due to its severity, the Kathua rape case[6]
has garnered a lot of attention recently, suggesting that rape is becoming a tactic
to create terror and demonstrate one's dominance over others. In this horrible
act, the priest of Devasthan, together with his son and little nephew, raped
Asifa Bano, an eight-year-old girl who became the victim of a community
vendetta. Eight males were charged with participating in various illegal
activities that resulted in the murder of a youngster who had just been the
victim of a rape. Three of the accused were public employees who were charged
with attempting to obliterate the evidence. As a result, it is obvious that
rape has been used as a weapon in inter - communal disputes.
CONCLUSION
Law has a maleness to it, as has been
clear from the legislative framework outlined above. It has ignored and
neglected the suffering of women and sexual minorities for many years. It
is clear from a careful reading of several statutes that women have
historically been viewed as submissive and dependent. It is high time that the
definitions of victim and perpetrator in Indian law should be changed to gender
neutral. First, it must be recognized that gender neutrality would not mean
that the law would be ignorant to any gender or that the difference would
disappear, but rather that it would be more attentive to the requirements,
functioning, and behaviour of all genders across spectrums and paradigms.
Second, the claim that the gender
neutrality of rape and sexual abuse laws will allow males to abuse them by
filing counter complaints, preventing women from reporting sexual crimes to the
authorities more than before, is unfounded. The risk of legal misappropriation
exists in every legislation, but this should not prevent the government from
putting it into effect. They ought to advocate instead for a gradual approach
to enacting gender-sensitive policies that get us closer to the equitable
society envisioned in Article 14 of the constitution. By eliminating gender
prejudices in law enforcement, expanding the definition of victim and
perpetrator to include all genders would only broaden the scope of justice.
Additionally, the idea of "Romantic Paternalism," which is present in
the Constitution and Labour laws, should be rejected because it has shown
itself to be consistently prejudiced towards one gender and hindered its
empowerment. To emphasize their perspective, there is an urgent need for more
women and sexual minorities to serve as lawmakers, attorneys, judges, and
politicians.
Finally, it is crucial to understand
the gender neutrality purpose that attorneys alert the judiciary to any
discriminatory laws. It is necessary to practice more feminist law, as was done
in the cases of Tukaram, Bodhisattva, Chandrima Dass, and Vishakha.
Incorporating the best aspects of each precedent should be the fundamental goal
of both legislative bodies and the court.
REFERENCES
Internet
Journal
Papers
Law Reports
and Commissions
1. Ministry of Law, Government of India,
and Committee on Amendments to Criminal Law (Chairperson: Justice J.S. Verma, 2013).
2. Ministry of Law, Government of India,
One Hundred and Seventy-Second report on Review of Rape Laws, LAW COMMISSION OF
INDIA (2000)
Article Information
GENDER NEUTRAL LAWS - A CRITICAL STUDY - BY APOORVA UPMANYU AND ANSHUL RANA
Authors: APOORVA UPMANYU, ANSHUL RANA
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/11/22
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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