Open Access Research Article
EQUAL PROTECTION: GENDER-NEUTRAL LAWS FOR SEXUAL OFFENSES IN INDIA
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EQUAL
PROTECTION: GENDER-NEUTRAL LAWS FOR SEXUAL OFFENSES IN INDIA
AUTHORED BY- PRAPTI KAPOOR,
STUDENT, AMITY LAW SCHOOL,
AMITY UNIVERSITY, NOIDA
Abstract-
In India people still believe in the
traditional notion of sexual crimes that the victims can only be women. Men
being strong they cannot be victim and can only be perpetrator. But the truth
is men too are victims of sexual assault but they tend to remain silent because
they don’t have enough laws and rights to protect them. They also feel
embarrassed to file a complaint as it is believed that men are strong enough to
protect themselves.
The LGBTQ+ community also face
discrimination and are not provided with much laws to protect themselves. They
face humiliation and are sexually harassed. They are still not considered as a
part of society and face a lot of hardships.
Gender-neutral laws help to create an
environment where all the genders are protected, and given equal opportunities
to protect themselves. It helps to break the traditional thinking that men are
strong so, they don’t feel the pain. By making gender sensitive laws India can
create a society that respects all genders, and help everyone to live a
dignified life.
Introduction-
“Gender neutral” describes actions,
words, or regulations that refrain from making gender distinctions between
individuals. It seeks to establish a welcoming atmosphere that does not
discriminate against or favour people based on conventional gender standards.
This idea is frequently used in a variety of circumstances, including attire, washroom
usage, and other social and institutional settings.
In an effort to acknowledge and value
a variety of gender identities and manifestations that go beyond the conventional
male-female dichotomy, gender neutrality is being promoted.
“Gender refers
to the social, cultural, behavioural characteristics, and roles associated with
being male or female.” In addition to biological distinctions (sex), it
encompasses duties, expectations, and identities that society deems appropriate
for men and women. Gender identity refers to “a person's deeply felt
internal sense of gender, which may or may not match the sex assigned to them
at birth.”
It's
important to keep in mind that gender is a spectrum and that, in addition to
not cleanly falling into one of the traditional categories, people may identify
as non-binary, genderqueer, or genderfluid, among other identities.
Promoting inclusion and equality
requires an understanding of and recognition of gender diversity.
Gender- neutral laws help to promote
equality and fairness and provides equal opportunities to avail justice in any case
of injustice caused to them. Sexual offences leave a deep impact in the
mind of the victim, so it is important that they can approach the court, seek
legal guidance, and for that it is important that there are laws made to
safeguard the interests of all irrespective of their gender.
Although
everyone is equal before the law according to the Rule of Law philosophy, this
is not always the case in real life. Many communities have been marginalised
for generations because society is so biassed. It was necessary to enact laws
in their favour to safeguard them from any injustice, and grant them equality
with other communities. This is evident in the case of women, for whom laws
particular to their gender are passed in nearly every country on the planet.
The need
for gender neutral laws-
With the
changing times and growing number of sexual crimes, harassment it is important
that there should be gender sensitive laws in India.
There are
many laws but they are gender specific like laws related to dowry, sexual
assault, domestic violence etc, all these laws are specifically made to protect
women. By making laws that does not tackle the injustice faced by all, it restricts
its reach by prescribing who is allowed to commit a crime by presuming the
gender of both the victim and the offender.
Due to
these restrictions, many cases of a similar kind may be disregarded and remain
unreported simply because the victim's gender, the offender's gender, or both,
does not match what the law specifies.
The
plight of men in light of laws that are gender-centric and require thoughtful
amendment was “first brought to light in the 172nd Law Commission Report[1].” Later,
the Criminal Law (Amendment) Bill, 2012 proposed replacing the word
"rape" wherever it occurs with the word "sexual assault" in
order to broaden the definition of the offence and make it gender-neutral.
Unfortunately, nobody paid any attention to these guidelines—that is, until the
University Grants Commission (UGC) did. Following the Ministry of Human
Resource Development's announcement, the UGC used its authority to enact
regulations prohibiting sexual offences in higher education.
The
2012 Act Protection of Children from Sexual Offences-
It
is important to note that, with the exception of Section 3[2],
which solely addresses “penetrative sexual assault, the whole” Protection of
Children from Sexual Offences (Amendment) Act, 2019 is gender-neutral.”
The
Justice Verma Committee[3]
proposed “a gender-neutral definition of rape in 2012, acknowledging the
possibility of sexual assault on men, as well as homosexual, transgender, and
transsexual rape.” The committee recommended necessary changes to the “definition
of rape in the Criminal Law Amendment Act, 2012,” but these changes were later
omitted. Several high courts have issued similar directives in an effort to
fulfil justice's objectives. “The Criminal Law (Amendment) Bill, 2019” was
presented in the Rajya Sabha to address the same requirement and achieve gender
neutrality in sexual offences. But the law was a failure at the outset.
In Varun
Bhatia v. State and Anr.,[4]
“The Delhi High Court has outlined how courts should handle
"gender-specific laws" and maintain their gender neutrality, stressing
that in these situations, the approach should not be biassed in favour of one
gender over another.”
Consequently,
it is clear from the aforementioned instance that gender neutrality is crucial
and that equality should always prevail when making decisions, with no gender
being given preference over another.
Transgender-
It is a “phrase
used to characterise someone whose gender identity differs from the sex they
were given at birth.” They face a lot of discrimination, humiliation and people
don’t accept them and criticize them. They are bullied by people and this leads
to a lot of mental and emotional trauma.
Transgender
people are not well protected by laws or other rights.Though our constitution
provides equal protection to all, and everyone should get equal opportunities
still they are deprived of basic amenities, rights. Seeing the atrocities they
face and to provide them protection “Transgender Persons (Protection of Rights)
Act of 2019”[5]was
passed.
“Anyone
who frequently acts in a sexually abusive manner towards a transgender person
faces up to two years in prison and a fine under Section 18(d) of Chapter 8 of
the Transgender Persons (Protection of Rights) Act of 2019.” This is a clear
illustration of how unconcerned the legislature is with transgender
individuals.
There have
been instances of rape of LGBT people. In a recent case, at least five men are
accused of beating up and sodomising two LGBT students from Bangladesh in the
Shakarpur[6]
neighbourhood of Delhi. In relation to the case, four accused parties—including
a minor—have been placed under arrest.
In
State of Punjab v. Ramdev Singh- [7]
“The
Supreme Court made the following observation: rape is a crime against society
as a whole, not just against the person of a woman. It breaches the most prized
fundamental right protected by Article 21 of the Indian Constitution and is a
crime against basic human rights.”
So,
as it is evident in the case discussed above the court has held that rape is
not a “gender specific but a gender- neutral offence” anyone who is a victim of
it experiences the same trauma and pain.
It leaves a deep impact and the persons entire life is changed because
of this.
Constitutional Provision-
Constitution
of India which lays down the rules, duties and rights of citizen of India as
well as the government. The fundamental rights are those rights which cannot be
taken away from any citizen. Some of the constitutional provisions are
discussed below-
Based on
the idea of the “Rule of Law”, “Article 14” of the “Indian Constitution”
establishes the “right to equality before the law.” As per Article 14[8] of
our constitution “everyone is equal before the law and is entitled to the same
protections under the law anywhere in India.” All individuals on Indian
territory, citizen or not, are entitled to exercise this fundamental freedom.
Furthermore,
the Article might be seen to support the right to equal treatment in comparable
circumstances regardless of a person's gender or sexual orientation because it
discusses “equality before the law” and “equal protection under such laws.”
This will apply to the responsibilities as well as the rights granted.
The
Supreme Court acknowledged the difficulties the transgender population faces as
a result of their gender not being recognised in the historic decision in the
NALSA case. Since it immediately compromises their dignity and personal
freedom, the Court emphasised how this gender-based discrimination and
prejudice violates both Article 14 and Article 21.
The Court ruled that transgender people are denied equality before the law and the same protections under the law as people of other genders because they are excluded from Indian laws and legal provisions. The transgender population faces pervasive prejudice as a result of this exclusion, which can only be stopped by appropriately accommodating gender-inclusive terminology in the legislation.
The Court ruled that transgender people are denied equality before the law and the same protections under the law as people of other genders because they are excluded from Indian laws and legal provisions. The transgender population faces pervasive prejudice as a result of this exclusion, which can only be stopped by appropriately accommodating gender-inclusive terminology in the legislation.
“Article
15[9],
however, forbids discrimination on any basis, including but not limited to
religion, race, caste, place of birth, sex, or any combination of these.”
Nevertheless, clause (3) also gives the State the authority to enact unique
laws and regulations aimed at uplifting the weaker segments of society, such as
women.
Legal Provisions in India-
There
are many legal provisions like rape laws, sexual assaults, dowry, etc. Some of
the legal provisions are discussed below-
Section
375-
“Rape”
Section
375 of the Indian Penal Code[10],
as amended by the Criminal Law (Amendment) Act, 2013, stipulates that “a man is
considered to have committed rape if he -
·
forces a woman to have sex with him or another
person, or if he inserts his penis, to any extent, into her mouth, urethra,
vagina, or anus
inserts, to whatever degree, any item or body part—other than the penis—into a woman's vagina, urethra, or anus, or forces her to do so with him or another person
inserts, to whatever degree, any item or body part—other than the penis—into a woman's vagina, urethra, or anus, or forces her to do so with him or another person
·
modifies any aspect of a woman's anatomy to induce
penetration into the vagina, urethra, anus, or any part of the body of such
woman or makes her do so with him or any other person
·
apply his mouth to a woman's vagina, anus, or urethra,
or causes her to do so with him or another person.”
Section
376-
This
section deals with rape penalty. In a Kerala high court[11] case
related to custody of child.
Justice Mustaque voiced his worry that the
Indian Penal Code's (IPC) Section 376, which deals with rape penalty, is not
gender-neutral. He declared,
“Section 376 is not a clause that is gender-neutral. It is not prosecutable for a woman to deceive a man under the guise of marriage. However, a male might face charges for the identical crime. This is what kind of law? It need to be impartial to gender.”
“Section 376 is not a clause that is gender-neutral. It is not prosecutable for a woman to deceive a man under the guise of marriage. However, a male might face charges for the identical crime. This is what kind of law? It need to be impartial to gender.”
Section
377-
According
to Section 377 of the IPC[12],“anyone
who voluntarily engages in carnal relations against the natural order with a
man, woman, or animal faces a life sentence in prison or a term of imprisonment
of any kind that may last up to ten years, along with a fine.”
Any unnatural sexual relations with a man, woman, or animal is prohibited by Section 377 and carries a maximum ten-year jail sentence in addition to fines. For this reason, neither men nor even transgender persons have their own set of specified rules.
Any unnatural sexual relations with a man, woman, or animal is prohibited by Section 377 and carries a maximum ten-year jail sentence in addition to fines. For this reason, neither men nor even transgender persons have their own set of specified rules.
The rape
case of Nirbhaya Gang. This was the most horrible incident that took place
aboard a moving bus during Delhi's child nights in December.
It
resulted in numerous changes in the field of criminal law that fundamentally
altered the direction of the legislation in that area and gave rise to the “Criminal
Law Amendment Act of 2013.”
Section
497-
The
Parliamentary Standing Committee[13] on
Home Affairs has recommended that Section 497 of the IPC, which was overturned
by the Supreme Court in 2018, be kept in the proposed legislation by
"making it gender-neutral," citing the objectives of gender
neutrality in doing so.
A person would be guilty of adultery under Section 497 if they had sex with a married woman without her husband's knowledge or consent. This might result in jail time, a fine, or both; nevertheless, the woman was exempt.
A person would be guilty of adultery under Section 497 if they had sex with a married woman without her husband's knowledge or consent. This might result in jail time, a fine, or both; nevertheless, the woman was exempt.
New Criminal
Law Acts-
The
government has passed three new bills which will replace the old ones-
1.
Bharatiya Nyaya Sanhita- Indian Penal Code
2.
Bhartiya Nagarik Suraksha Sanhita- Criminal
Procedure Code
3.
Bhartiya Sakshya Adhiniyam- Indian Evidence Act
The new acts[14]
have once more failed to provide any protection for male victims of sexual
assaults. “Despite the BNS's (“Bharatiya Nyaya Sanhita”) Statement of Objects
and Reasons claiming to make crimes against women and children gender neutral,
the relevant act’s sections do not reflect this change.” The sections of the
law that deal with sexual offences are the same as those in the previous
versions, and they still make use of gendered terminology such
"woman" as victim and "man" as offender. Making sexual
offences gender-neutral presents a historic chance to advance gender equality.
Difficulties in Adopting a Gender-Neutral
Law-
1.
Media Representation-
Media is
considered as the fourth pillar in our country. Whatever information they share
on their channels, newspapers make a deep impact. Everyone believes it to be
true. It can impact the thinking of people. The mainstream Indian media does
not portray males as victims of sexual assault; instead, it paints an idealised
picture of the guy. Indian films downplay the seriousness of sensitive themes
like misogyny by using comedy and sexist humour.
The
stigmatisation and harassment of gay and transgender individuals is another
uncomfortable topic that the Indian media makes fun of. It has also been used
humorously to discuss male molestation.
“The only
well-known Bollywood film to tackle the problem of sexual assaults against men
is Aitraz, in which the protagonist is subjected to a sexual assault attempt by
the boss's wife."
Recently, Sarvjeet Singh[15] was arrested after he was wrongly accused of harassing Jasleen Kaur after she shared a picture of him on Facebook and it went viral. Following the investigation, it was discovered that Sarvjeet Singh was innocent; but, as a result of the media's hype and coverage, Sarvjeet Singh was dubbed a harasser, subjected to public humiliation, and lost his job. This instance demonstrates unequivocally how the media, by reporting without independently checking the facts, can wreck the life of an innocent person, by believing in the traditional notion that victims are always female and perpetrators are always male. Therefore, it is crucial that the media exercise their authority with extreme caution. They should be aware of the effects their words will have on the lives of those they criticise and considerate of their sentiments.
Recently, Sarvjeet Singh[15] was arrested after he was wrongly accused of harassing Jasleen Kaur after she shared a picture of him on Facebook and it went viral. Following the investigation, it was discovered that Sarvjeet Singh was innocent; but, as a result of the media's hype and coverage, Sarvjeet Singh was dubbed a harasser, subjected to public humiliation, and lost his job. This instance demonstrates unequivocally how the media, by reporting without independently checking the facts, can wreck the life of an innocent person, by believing in the traditional notion that victims are always female and perpetrators are always male. Therefore, it is crucial that the media exercise their authority with extreme caution. They should be aware of the effects their words will have on the lives of those they criticise and considerate of their sentiments.
2.
Patriarchy-
A nation,
government, or society where men dominate or hold power. In India there is patriarchal
society, there are certain set of behaviour, act which men are expected to
perform and if they do not perform it and deviates from it then society will
criticise them.
The
assumption that a guy must always be strong, incapable of displaying emotion or
crying in public, or that he feels no pain are a few instances of how society
expects an "ideal man" to act. Even though they favour gender
equality, some men are hesitant to talk about it because of this, which leads
to gender inequity.
Men
are silent regarding incidences of sexual assaults against them because of
society's patriarchal mentality. As a result, there is no reliable data
demonstrating that men can fall victim to sexual offences. Men must speak out
about these instances in a way that is comparable to the feminist movements in
order to pass gender-neutral laws prohibiting sexual offences.
Conclusion-
With
the changing times new laws are emerging it is important that people change
their mindset. There should be gender sensitive laws so, that all the people
irrespective of their can get justice whenever they face sexual assault or
harassment of any kind.
There
should be awareness about this concept so, that people can understand no matter
what gender it is sexual harassment is the same for everyone, the pain, the
emotional and mental trauma is same for everyone and it is more for the person
for whom there may be laws but not enough to protect them.
Though
there have been a few landmark cases that has recognized the transgenders but
still they are not given equal rights, it is important to understand their
issues and give them the respect they deserve so, that they can live a
dignified life.
Laws that
are gender-neutral contribute to the development of an inclusive atmosphere
where all genders feel valued and safe. Laws ought to apply equally to all
people; if we privilege one gender over another, there may be legal misuse, as
the rise in fake cases shows. It is critical to safeguard everyone, regardless
of gender. It is crucial to create rules that are inclusive of all genders
since everyone experiences suffering and trauma, regardless of gender identity.
[1] https://www.scconline.com/blog/post/2021/05/27/should-sexual-offences-be-gender-neutral/ (Last visited on 1 March 2024)
[4] Varun Bhatia v. State, 2023 SCC
OnLine Del 5288
[5] Section 18, Transgender Persons
(Protection of Rights) Act, 2019
[6] https://www.indiatoday.in/india/story/three-arrested-over-gang-rape-of-two-men-in-delhis-shakarpur (Last visited on 6 March 2024)
[7] State of Punjab v. Ramdev Singh,
(2004) 1 SCC 421
[8] Article 14, Indian Constitution
[9]
Article 15, Indian Constitution
[10]
Section 375, Indian Penal Code
(Last visited on 15 March 2024)
[12] Section 377, Indian Penal Code
[13] https://thewire.in/government/parliamentary-panel-gender-neutrality-section-377-criminalising-adultery Last visited
on 16 March 2024)
[14] Supra note 11
[15] Sarvjeet Singh v. State (NCT of
Delhi), 2022 SCC OnLine Del 3027
Article Information
EQUAL PROTECTION: GENDER-NEUTRAL LAWS FOR SEXUAL OFFENSES IN INDIA
Authors: PRAPTI KAPOOR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/16
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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