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A CRITICAL ANALYSIS OF GENDER-NEUTRAL CRIMINAL LAWS IN INDIA
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A CRITICAL
ANALYSIS OF GENDER-NEUTRAL CRIMINAL LAWS IN INDIA
AUTHORED BY - NAMAN JAIN
(AMITY UNIVERSITY NOIDA LLM)
Abstract
The concept of Gender Neutrality has received recognition globally. In
India, there are certain outdated legal
provisions which bore little relationship either to the constitutional directives or the emerging
social reality. There is absence of adequate enforcement mechanism which has made many of the laws ineffective. Recent
times have seen women-centric laws being abused and lacunae in laws being
exploited by both genders, hence the question
of legislating gender-
neutral laws arises, this paper deals with how to tackle the problem
created by this situation and if these
laws are appropriate for India or not.
INTRODUCTION
The purpose of criminal law is to protect the society against every crime
and to ensure this it prescribes
punishment. This protection is available to everyone irrespective of their sex
or gender. But the same is not true
in case of domestic violence, sexual offences such as rape or outraging
the modesty for example.
India has now
been fighting the war to protect its women for quite some time, and with the ever-mounting crime rate what is
imperative is that we ensure that the rise in the statistics is only because of the
rise in occurrence of crimes
and not because of the
abuse of laws.[1] It is not denied that women are in fact the prime victim in most cases
however, that does not necessitate the ignorance towards
the impact that is felt by men due to the injudicious use of the very laws
that are in force to safeguard them. For long, the pro women laws and
legislations have been justified due to the status
of women in society during the olden days.
Gender-neutral
legislations redefine the concept of gender-specific laws, where the law is
developed and interpreted in a way to include all individuals equally and to
safeguard their rights without any distinction. With an ever-increasing crime
rate and crimes of all different types and nature growing and everyone in the
society being equally vulnerable, it is only just and reasonable to have an
all-inclusive law that recognizes the crime and the victim irrespective of the
gender. Strong oppositions have been raised against gender-neutral legislation
coming into force by countless feminist groups and women activists on the
belief that it will instantly shift the attention from the sincere female
victims of the crime to the unprecedented false and frivolous complaints
against them.[2]
The need for gender neutrality is of high
requirement in the legislation. Most of the provisions of IPC which states
about offence against women allude men only as a criminal. The concept of
gender neutrality in the legal aspect refers to the idea of equality in the
recognition of the rights of all individuals irrespective of their gender.
Thus, viewing the prevailing socio-legal conditions of India there is a
paramount need to obtain gender neutrality in laws by underlining the shift in
the societal trends. Only the establishment and implementation of
gender-neutral legislation would be successful in increasing the coverage of
these crimes. The time is now, the hour of need to reform old archaic law has
come.
Rape, sexual
assault, harassment, and cruelty are acts of grave concern - not only due to
the physical, psychological and emotional trauma which they may cause to the
victim, but more importantly because these are practices which are gradually
being tolerated by a society which is presumably wedded to the rule of law. The
basic right to live with human dignity, the right to equality, and the right to
the choice of work or profession or trade fundamentally incorporate protection
from any form of assault or harassment as well.[3]
Undoubtedly, the position is that the Indian Constitution guarantees
fundamental freedoms to all its citizens regardless of their gender.
More
importantly, the Preamble to the Indian Constitution ensures social, political
and economic justice which would primarily include gender justice, freedom of
thought, expression, faith, religion and reverence; equality of status and
equal opportunity which would again strengthen the notion of equality; while
fraternity commands citizens to treat one another with mutual respect and
dignity, regardless of their gender.[4]
Following are
the provisions that have been briefly analyzed to highlight and discuss the
gender bias recurrent in the enforcement of criminal law in India:
SECTION
304B – DOWRY DEATH
As per this
section, when a woman dies as a
result of burns or bodily injury within a period of 7 years of her marriage,
and if it is established that there was cruelty or harassment that she suffered from her husband or any
relative of the husband, or with respect to any demands for dowry, then such
death will be called dowry death. In this case, the husband or the relative is
said to have caused the death of the woman[5].
In this context, we shall also consider Section 113B of the Indian Evidence
Act. This provision provides for the presumption that the accused has caused
the death of the woman if shown that soon before her death, she was a victim of
cruelty and harassment caused by him.[6]
In this
situation, the husband and his relatives tend to naturally become the guilty
parties, wherein they may not have committed the said crime against her. This
is a provision that is strictly inclined in the favor of women. Dowry deaths
are a serious matter and a menace to the society. This fact is undisputable.
However, the credibility of the charges has to be examined before establishing
the guilt.
Another
example to highlight the repercussions of the bias can be seen by the data from
the National Crime Records Bureau (NCRB). Around 200,000 people were accused
and arrested in relation with dowry offences in the year 2012. Of them, only
about 14.4% were convicted[7]
SECTION
498A – HUSBAND OR RELATIVE OF HUSBAND OF A WOMAN SUBJECTING
HER TO CRUELTY
This section
provides for the “cruelty” that a woman suffers, as caused by her husband or
his relatives. This particular section inhibits a gender bias that makes it
highly susceptible to misuse. Cruelty is an important factor that leads way to
various other offences against women. However, the misuse defeats the purpose
of justice. In the case Sushil Kumar Sharma v. Union of India, the Supreme
Court observed that any misuse of the legal provision is in fact the unleashing
of legal terrorism. The real intention of the said provision is that of a
shield and not a weapon. It was also noted that as a consequence of misuse, the
actual implementation of the provision would be deterred.[8]
A step towards
gender neutrality in this aspect can be attributed to the interpretation of the
word “cruelty” in various cases. The Supreme Court in a judgment for Vinita Saxena v. Pankaj Pandit opined
that “cruelty” may vary with time and person and that it is dependable upon the
lifestyle and conditions of the parties in question. It also depends on how
much importance they attach to human and cultural values[9].
This encourages change and a wider interpretation. The concept of “mental
cruelty” has also been discussed wherein it includes implicating false allegations
against the husband[10].
A welcome
change may be noted in the case Rajesh
Kumar & Ors v. State of U.P. where an appeal was raised for the need of
directives which can help deter the misuse of this provision. In its decision,
the Apex court laid down directives to prevent the misuse of section 498A.[11]
In Saritha v
R. Ramachandran this reverse trend was observed by the court and consequently,
the Law Commission and The Parliament was asked to deliberate upon this issue
and make the offence bailable and non-cognizable. However, another trend from
the past followed and several women's rights organizations and groups went
against this idea of development, arguing that this may benefit the actual
accused and give them a chance to escape conviction. However, a more practical
and positive approach would be to perceive and interpret this recommendation as
a way to give all men a fair chance to rightly defend themselves and no fall
prey to the unfair and deceitful complaints filed by women. Justice in its true
sense means protecting the weaker and ensuring that the person who is wronged
is given a fair chance to must protect the weaker and ensure that the wronged
is given a chance to assert and establish his/her innocence.
Rape
- Section 375 of the Indian Penal Code, 1860
Though the
widespread belief is that the victim of rape is ordinarily a woman, the World
Health Organization estimates that 12% to 16% of men around the globe have been
reported to have a history of some form of sexual abuse during childhood. It is
also acknowledged that the reports that reflect such data is mostly from
developed nations. Men or boys may experience or suffer through sexual assaults
in three different circumstances: Prison rape; Sexual assault during
circumstances of conflict and Sexual assault of juvenile males during
childhood.[12]
Section 375 of
The Indian Penal Code, 1860 categorically regards rape as an offence
perpetrated by a man against a woman. It identifies the man as the only
possible perpetrator and women as the only possible victims.[13]
It is a victim as well as perpetrator specific as it does not take into
consideration the possibility of the following scenarios;
·
A man being raped by a man
·
A man being raped by a woman
·
Rape of a third gender
The rape of
men is still a taboo, and has a negative implication amongst the homosexual and
heterosexual men.[14]
Male victims may find it difficult to report any form of sexual abuse they
experience, especially in a society with robust male customs. They may fear
that people will raise questions concerning their sexual orientation or label
them as homosexuals, or that they may be considered as un-masculine because
they have been ‘Raped’
In most cases,
male victims often tend to deny and hide their victimization, which is also quite
similar to the nature of female victims, unless they suffer severe physical
injuries. The male victims can also be extremely imprecise and vague in
describing the events even while they are seeking medical help or any other
mental health assistance.[15]Stories
narrated by male victims often mirror situations arising from female rape in
terms of humiliation, self-blame, and embarrassment, but men are far more
likely to not report any instance of an assault. To add to this, due to the
absence of a strong criminal legal system to defend and offer aid and
assistance to men on the occurrence of any mishap, the cry for relief is lost
within the patriarchal system itself.
Reading this
provision provides a clear indication as to who is the victim and who can be the
perpetrator. A “man” is said to commit “rape” has sexual intercourse with any
“woman”. Six descriptions have been provided in this regard[16].
The section further highlights the importance of consent and will for sexual
intercourse. However, the fact that even a man’s consent and will, may be
required has not been traditionally considered. This comes in the wake of
various stereotypes attached to both the genders where the man is in a position
of power over the woman, and only a woman can be a victim. Another aspect to
this is that the woman cannot be the perpetrator of this crime. This section,
by being gender specific, also excludes the transgender community from being a
victim of such offence as under the Penal laws of the country.
CAN
A FEMALE COMMIT RAPE?
This question
had come up in Priya Patel v. State of M.P. The issue that came before the
court was whether the female could be prosecuted for the offence of gang rape,
citing common intention for this offence. The woman involved was charged under
Section 376(2)(g) of IPC. The court however contended that the charges against
the woman shall be dropped. Abetment for this crime as done by the woman was
also not accepted. Supreme Court opined that the woman cannot be said to have
the intention to commit rape.[17]
It can,
however, be argued that Section 376(2)(g) does not expressly specify “man” to
be the perpetrator. This provision is inclined towards being more gender
neutral. But rape is seen, in all certainty, as a male perpetrated crime.
Is
rape against a man even possible?
Yes, it is.
The example of Reynhard Sinaga provides the proof here. He was one of the most
prolific rapists in Britain, with sexual offences that count up to 159, against
48 men and many more yet to be identified[18].
The Indonesian student who lived in the UK would intoxicate men and then rape
them. For his crimes, he was sentenced to life imprisonment. This brings us to
the conclusion as to the reality and that the social stigma attached to rape
against men must be addressed. This may further lead to many cases going
unreported. Studies done by the Centre for Disease Control and Prevention (CDC)
in the United States found that men reported having been forced into sexual
intercourse at some point in their life.
SECTION
376 B/C/D
These sections
list out offences committed by public servants wherein a woman is seduced. Such
intercourse is punishable under the penal code. However, the bias does not
advocate the fact that a woman in a similar position of power can also commit
the same offence on a man or a woman. This provision therefore not only
highlights the abuse of power, but also a bias and the stereotype of women not
having the guilty mind to commit sexual offences.
SECTION
354 – ASSUALT OR CRIMINAL FORCE TO WOMAN WITH INTENT
TO OUTRAGE HER MODESTY
The modesty of
a woman in our society holds a sacred idea. And thus, when violated, the same
is penalized by this section. However, the very idea of the modesty of a man is
not taken into consideration. Men may be bullied. And one may never deal with
these cases formally. These are not within the purview of the IPC. This makes
it hard for men to speak up when they face abuse or outrage. This aspect needs
a more vocal idea where victimization of men and their vulnerability is also seen
acknowledged and dealt with. This again comes from the concept that all men and
women cannot have homogenous experiences in life and they may differently be
vulnerable to certain conditions.
Another
problem that arises from the gender specificity of this section is the use of
the word “modesty.” Modesty has been said to mean the sexual virtue that
differentiates a woman and a man. A woman’s sexual virtue is sacred and this
highlights how a woman’s virtue is defined
by her
sexuality. It comes in times where we are aspiring to be more autonomous and
individualistic. This societal norm further leads way for all other sexual
offences, which according to the Indian Penal Code; find only the woman to be a
vulnerable party.
Marriage
Prior to 1983,
Chapter XX of the IPC dealt with offences relating to marriage. It included
offences relating to cohabitation and sexual access by persons through
deceitful inducement of belief of marriage, bigamous marriage, adultery and
enticing or taking away a married woman.
Offences
relating to marriage Three of the six sections included in this chapter are
concerned with sexual relationships and marriage and may be committed only by
men.34 The exclusion of women from penal liability for these
offences is directly linked to stereotyping and role socialization of male and
female sexuality.
The sections
relating to offences of bigamous marriage and fraudulently going
through marriage ceremony without a lawful marriage use the word 'he'. In
contrast the sections dealing with inducement of a belief of marriage in order
to cohabit or to have sexual intercourse use the word 'man'.[19]
As usage of the word 'he' in contradistinction to 'man' changes the scope of a
provision in the IPC, the former set of offences may be committed by either a
man or a woman but it is only the man who is liable for the latter offence.
There are two plausible explanations for exclusion of women from this offence.
Either the law does not believe that women can induce a belief of marriage in a
man in order to cohabit or to have sexual intercourse or even if they can do so
men will not suffer any adverse consequences because of that. Men can look
after themselves in such situations.
Sexual
Harassment Law
India
currently lacks a legal framework under which a woman can be tried as an
accused of committing any sort of sexual abuse against the man. The harassment
law in India extends protection only to women by the virtue of the Sexual
Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act,
2013.
India has no
official statistics to provide an exact figure concerning the number of men who
face sexual harassment at work, and how many of those men actually come forward
to file complaints about such harassment.[20]
It is of great significance to understand that Sexual Harassment is not about
the sex or the gender of the victim. It is merely about authority, control, and
power. And so consequently, in today’s time and age, when the number of women
successfully reaching powerful and higher positions at the workplace is
constantly increasing, there is no justified reason as to why a woman who is in
control and power cannot be as abusive as her male counterparts. It is therefore
of utmost importance to examine and review the issue of growing incidents of
assault and harassment against men in the public forums.
Sexual
harassment of males necessitates more attention and seriousness than any other
issue or crime since suicides committed by males at the workplace are four
times more common than the suicide rate of females at workplaces.39
Gender-equal legislations have been accepted in more than 75 countries around
the world including, the United States, Australia, United Kingdom, and Denmark.
Yet, the Parliament in India has repeatedly refused to enact laws combatting
harassment as gender-neutral. This problem of harassment within males also
continues to take place even more frequently in prisons.
The
Protection of Women from Domestic Violence Act, 2005
Domestic
violence denotes violence or other kinds of abuse by one person against the
other in a domestic or household setting, such as in cohabitation or marriages.[21]
The rate of Domestic Violence in India is high to an extent that one out of
every five women is reportedly a victim of some form of domestic violence. The
Protection of Women from Domestic Violence Act was passed in 2005 which
guarantees protection to women against violence of all forms taking place within
the matrimonial house or the family and for any other matter connected or
incidental to it. By a bare perusal, the law emerges as a “shield” or guard for
women in India who are victims of obnoxious and violent relationships. However,
the other side of the enactment is that many times, women are themselves the
cause and bearer of such violence and they often play a significant role in
perpetrating acts of violence against other members of the family.
The act of
violence within a marriage or other relationships often leaves the victim with
much more pain and damage than what is visible as scares and injuries. The
Supreme Court, with its progressive decision and a wide interpretation of the
word ‘respondent’ and by subsequently by ordering to delete the words
‘adult-male’ from the definition of the respondent under Section 2(q), paved
the way for the inclusion of women and non-adults as perpetrators for causing
harassment or violence to any women in the family. The Act, therefore, is now
gender- inclusive, when it comes to the perpetrator, however, it remains
gender-specific in regard to who the ‘aggrieved person’ can be i.e., it only
identifies women as victims of domestic violence.[22]
There are
essentially two major fundamental problems within this legislation. First, it
is framed in an overwhelmingly gender-biased fashion i.e., it only favors and
protects women. And secondly, it embodies the immense potential for the misuse
of its provisions. Even when it has been comprehensively established that women
are equally capable of inflicting violence and indulging in abusive behaviors
while being in an intimate relationship, the law still withholds protection
from male victims. The Act also offers numerous rights to women without
demanding them to be accountable for their own actions.
To remedy this
and ensure that the law is not used as a dirty weapon, at the very minimum, the
legislature should make it gender-neutral to include both men and women as
victims and thereby offering a uniform guard to both. Moreover, there is a need
to incorporate provisions for strict penalties to prevent any misuse of the
law. Additionally, the law requires more practicality as it needs to
differentiate between the different degrees of violence and conflicts and by
defining what amounts to domestic violence unambiguously.
To cure this,
the legislature should make these laws gender neutral which includes both men
and women as victims so that to offer both of them a uniform guard by ensuring
that the law is not to be used as a dirty weapon. Additionally, there is a
crucial need to incorporate provisions which provides for strict penalties for
any misuse of law. This would in turn prevent the legislations from misusing
for one’s own very purpose.
Suggested
Reforms
On the basis
of changing laws so as to recognize offences of violence and abuse to include
men also under its purview, the (POCSO Act) which was an Act that
came into force to protect children from offences of sexual assault, sexual
harassment and pornography and also to provide for special courts for trial of
such offences and any other matters incidental to this. This legislation
recognizes that children irrespective of the gender can be subject to such
offences but beyond the age of eighteen where the law terms him as adult, he is
no longer entitled to that protection under any law that is in force. This is
what needs to be addressed, that such crimes can and are happening to men
beyond the age limit of being a child and just as women are being offered
protection under the law, men too should be given protection as mandated by the
constitution of India. The Act includes Penetrative and aggravated penetrative
sexual assault, sexual and aggravated sexual assault, sexual harassment, and
using a child for pornographic purposes as the five offences against children.
This act envisages punishing even abetment or an attempt to commit the offences
defined in the act. It recognizes that the intent to commit an offence, even
when unsuccessful needs to be penalized. The punishment for the attempt to
commit is up to half the punishment prescribed for the commission of the
offence. The legislature has taken a step forward in enacting gender-neutral
laws with respect to children and any person who commits the same will be
punished and for once it is the crime that is focused and not the gender.
With respect
to Sexual Harassment at workplace and the Act 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. Only once there is effective mechanisms of redressal in place
will more cases can be reported and only then justice can be served to the
working class leading to more productivity and economy development of the
country. Gender neutral laws with respect to sexual harassment have been recognized
and accepted in most countries in the world such s United Kingdom, Denmark,
Australia and USA. Sexual harassment can be perpetrated by both males and
females against both males and females as a matter of power and upon those who
have an advantageous position over the other and the societal belief along with
the law must make a transformation to be gender neutral towards such offences.
[1] Carrel,
P. M., & Masters, W.H. ‘Sexual molestation of men by women’, [2007]
Archives of Sexual Behavior, Vol. 11(2), 117.
[2] The
Wilson Centre, ‘Opening Statement by Additional Solicitor General Indira
Jaising to the Verma Committee’ The Wilson Centre
[3] Salvia
Forbes, ‘Human Rights must be equal to all’ Forbes Daily [2017] Vol 3 41-43).
[4] Granville
Austin, The Indian Constitution — Cornerstone of a Nation (1999).
[5] Indian
Penal Code, 1860, Section 304B
[6] Indian
Evidence Act, 1872, Section 113B
[7] Avneet
Arora, 80% of all dowry cases end in acquittal, https://www.sbs.com.au/language/english/80-per-cent-
of-all-dowry-cases-in-india-end-in-acquittal
[9] Vinita
Saxena v. Pankaj Pandit, (2006) 3 SCC 778.
[10] S.
Hanumantha Rao v. S. Ramani AIR 1999 SC1318
[11] Rajesh
Kumar & Ors v. State of U.P. (2007) SCC Online SC 821
[12] Will
S., ‘Rape of men: the darkest secret of war’ The Guardian
[13] Gupta,
T. S., ‘Child Abuse’
[14] Menon,
P. (2013). ‘Lacking support, male rape victims stay silent’ The Times of India
[15] Constantino
RE, Crane PA, Young SE Forensic Nursing: Evidence-Based Principles and Practice
(F. A. Davis Company 2013)
[16] Indian
Penal Code 1860, Section 375
[17] Priya
Patel v. State of M.P (2006) 6 SCC 263
[18] Athira
Nortajuddin, Taking male rape seriously, THE ASEAN POST,
https://theaseanpost.com/article/taking- male-rape-seriously
[19] Section
493 of Indian Penal Code, 1860
[20] M.
Aarti, ‘Sexual harassment and men’
[21] Sukhmani
Kapur, ‘Domestic violence and men: no laughing matter’
<https://www.psychologytoday.com/us/blog/talking-about-men/201911/domestic-violence-againstmen-no-
laughing-matter>
[22] Anwar,
T. (2015). ‘Flipside of dowry law: Men recall how section 498(A) is unfairly
used against them’ First Post <http://www.firstpost.com/india/flipside-ofdowry-law-men-recall-how-section-498a-is-unfairly-
usedagainst-them-2172943.html>
Article Information
A CRITICAL ANALYSIS OF GENDER-NEUTRAL CRIMINAL LAWS IN INDIA
Authors: NAMAN JAIN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/05/01
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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