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GENDER NEUTRAL LAWS TO COMBAT SEXUAL VIOLENCE IN INDIA: A CRITICAL STUDY
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GENDER NEUTRAL LAWS TO COMBAT SEXUAL VIOLENCE IN INDIA: A
CRITICAL STUDY
AUTHORED BY - REBECCA SARA GEORGE
Abstract
Gender neutral laws for sexual violence
has been a debatable topic in India, as most of the sexual violence are
considered to be gender biased, which is happening only against women. Gender
based laws clearly indicates that man can be the perpetrator for the offence of
rape and only women can be the victim. Many countries around the world have
changed the age old belief associated with the sexual violence that it could be
only be committed against women and hence made significant reformations to
bring about gender neutrality for sexual violence In the wake social change ,it
is quintessential to expand the definitions provided for various categories of
sexual offence of homosexual nature and the recognition of women as
perpetrators to sexual offence.Sodomy only criminalizes a part of homosexual
offences therefore not entirely effective .Criminal Law amendment bill ,2019 though
paves a positive step towards gender neutrality but it has not been enforced
yet .Besides substantive changes ,procedural changes needs to be incorporated
for proper disposal off gender neutral sexual offences .However ,amendment in
penal code is just one step towards gender neutrality of sexual offences
.Effective change can be possible by
collaborating law with judicial recognition of non-penetrative rape
,elimination of social stigma ,generating awareness and proper sex education
INTRODUCTION
We live in the world of diverse group
of people. When we look around, we see different types of people. Different on the
ground of their backgrounds, caste, creed religions etc. Let grouping of sex be
issued here. From the beginning of time till today, our cultural practices have
created a boundary between sexes. Our society has created a boundary of separation
for males and females, the way they are raised, their lifestyle, education and
even occupation they take on.
There is no denial that we are part
of gender obsessed society. Toys ,books,colour ,sports -everything is gendered
.Boys don’t cry Girls are weak .Male are always criminals and females are
always victim .These are some of the common concept of our society which are cultivated
in children since their childhood .The concept of “equality ”is only
theoretically available in our country .The word gender neutral means something
which is applicable ,suitable or common for both the genders .The word gender
neutral means something which is applicable, suitable or common for both the
genders .In other words we must say something which isn’t biased on the basis
of sex of person .Sexual offences are lamentable crimes which are punished by
the state Most of sexual offences are gender based .The physical and emotional
pain that the victim undergoes cant be measured or described that even lead to
suicide .There is no law of nature that
only a women be victims of sexual offence as most of the men and transgenders
are also victims .Our society has fitted a concept of feminine is a weaker gender
in our mind .We are forced to believe to believe that men don’t feel pain or
strong enough to bear it .We fail to realize that being a victim isn’t a choice
and the amount of pain the victim suffers isn’t gender biased. A man or
transgenders gets equally depressed and undergoes equal pain and emotional
breakdown as women when he undergoes sexual abuse or being victim of sexual
offences. But our constitution along with our society fails to notice this. On
one hand we have formulated very strict laws in favour of women but on the
other hand we ignore the concept that male as well as transgenders being the
victims of sexual offence. Mere Gender should not act as a barrier to punish a
criminal Its not about gender. Its about the sexual predation that the victim suffers and everyone deserves to be protected under
proper laws because victim has nothing to do with sexuality .A man ,or women or
transgenders or before being whomsoever they are human beings .Law needs to
protect everyone without being biased on the basis of sex ,caste ,class or
anything .Criminal law around the globe curbs sexual offences with stringent
punishment .Offences of these nature dents the modesty of a person ,the sole
element which constitute for a pride over
self-body .However this fundamental element of pride is only attributed only to
women .In addition to that the according to the definition, victim of sexual
offences can only be a woman .Further the definition illustrates man to be a
sole executioner of sexual offences .The deduction of all these implies that
men and transgenders are devoid of modesty
cannot be victims of sexual offences and women are unable to commit
sexual offences .Further more sexual offences cannot be directed towards women
by a women and every kind of sexual offenses against men can be encompassed
within sodomy.
In general terms sexual offences are
defined as heterosexual in nature, involvement of two opposite genders with the
exception to sodomy. Sexual offences characterize forceful, nonconsensual, act
by one gender (generally assumed male) towards other gender (generally assumed
to be female). This rigid definitional aspect of sexual offences seems a bit
off mark in the present scenario. Every so often we come face to face with news
which defies the definitional order of sexual offences. The penal code of India
was enforced in 1860 when the patriarchy
was prevalent .The laws were distinctively incorporated to protect women from
the patriarchal regime of then society .The society has undergone major
evolution since then .The constitutional methods of equal opportunities and
protective discrimination in favour of women ,the campaign of women education
and empowerment of women in personal as well as public sphere has brought a
change in the era old scenario .Today ,world favors gender neutrality ,equal
opportunities ,equal rights and justice .The decriminalization of same sex
relationship and social acceptance of LGBTQ screams for a social change ,social
acceptance and changing mentality of common subjects in the entire nation
“All are equal before the law” -The
good old quote widely used by those in the field of law. But unfortunately
,reality quotes otherwise .With some introspection we can understand that the egalitarianism
in our country is a knife that is sharp on both sides ,used at convenience of
monetary power .Every hierarchy that exist exist in our country has put us
through complications that neither serves justice nor time .But in this context
,we consider this issue that is prevalent across the globe -gender .The law
however seems to disown the good old quote when it comes to sexual offences
being gendered .We will learn ,understand and further look into analysing
gender neutrality for sexual offences from the perspective born out of common
question .what good is the law if it don’t serve justice to the innocent ?
GENDER NEUTRALITY: CONCEPT AND ITS MEANING
In India,
the concept of gender neutral is very new, questionable and controversial in
modern times. According to Merriam Webster Gender Neutral means not referring to either sex but only to people
in general. According to Oxford learners dictionary Gender neutral means
suitable for or shared by people of both sexes; not making a difference between
men and women. The need of gender neutrality arises right here when the
discrimination takes ground. Conceptually, it is a broader term than gender
equality itself. Gender neutral diminishes the difference between gender.
No matter how normal or abnormal they are. It brings the concept of Formal
equality of men, women, intersex, transgender, etc. Used to define and identify
human sex and gender. the concept of gender neutrality aims to eliminate the term
gender entirely. We seek equality on the basis of one person, regardless of gender.
biological sex and sexual orientation Gender neutrality is a concept that
emphasizes that society should not differentiate roles based on gender or sex.
It emphasizes the equal treatment of both men and women without any kind of
discrimination socially, legally, politically or economically. Gender
neutrality is primarily about treating everyone fairly and equally, regardless
of their background. It's part of a larger social change aimed at exposing the
mechanisms of social injustice and assisting in the implementation of true
equality in all areas. Gender neutrality, on the other hand, is not an attempt
to remove people's gender identities. Again, this does not mean denying the
difference between females and men, but rather recognizing the differences
between females and men and the impact these differences have on life
opportunities. Countries like India require a gender-neutral law rather than
gender specific against sexual violence. Laws enacted to protect women from
these types of sexual violence serve their purpose to some extent, but ignore
protecting men as well as transgender from such crimes. The concept of gender
neutrality includes the concept of equality of men and women without
distinction of roles and equal treatment in all areas. Women's laws, enacted to
curb sexual violence against women, have led to sexual violence against men and
transgenders because they did not prevent men or transgenders from seeking help
if they were victims of similar crimes. Women, men, and transgender people are
equally vulnerable to crimes such as sexual harassment, assault, rape and
stalking. If such crimes are committed against any person, the law must include
provisions for equal protection of men, women and transgender people. The
parliament has been under pressure from feminist groups and women's rights
activists against the passing of gender-neutral legislation for such offenses
and this is one of the main reasons why These laws only consider women victims.
Patriarchal system and religious views
Male dominance is the literal
definition of patriarchy. The belief that men are superior to women is the
foundation for male dominance in society and the family. In every way, men
dominate, exploit, and control women. Patriarchy has evolved over time, but it
has always been present in the social structure. In India, patriarchal
societies, particularly Indian patriarchal societies, believe that women's
roles are limited to household chores, child rearing, and serving their
husbands. The social, economic, and political distinctions that society imposes
are based on the biological distinction of sex. In a patriarchal society, the
male member of the family is always the head of the family. The decisions of
the family's head are final and binding, and women have no say in the matter.
The patriarchal system has resulted in not only the subjugation of women, but
also social evils such as female foeticide and female infanticide are all the
results of this social setup. The women’s right movement and the concept of
gender equality fighting against the shackles imposed by the patriarchy have
attempted to benefit the women but the recent crimes against women has brought
about a collateral damage to the rights of men .If gender neutrality is
propagated then it should serve to the advantage of both the genders and not to
the disadvantage of anyone .The patriarchal system of the society has
contributed enough to the problems for women and now it is same beliefs which
are hindering the rights of men .Since it is these values only which are
denying the very acceptance of the fact that even men are victims and need
protection under the law .In ancient India ,epics and puranas equated women
with property .Manu dictated that women would be dependent on her father in
childhood ,on her husband in youth and when her lord is dead her sons. Leaving
equality apart women were not treated as human beings, they were just
commodities in the eyes of men. The Indian patriarchal system led to gender
inequality and women of the nation continued to be suppressed by men which
prompted the rights of feminism that stood for the rights of women and their upliftment.
The patriarchal system has been legitimized by religion. The husband is
worshipped like a god.
SEXUAL VIOLENCE LAWS IN INDIA
Violence is one of the most
problematic issues faced by anyone and everyone in their day-to-day life. The
most general description of what violence is can be given as negativity towards
someone or something either through physical actions or verbal which directly
or indirectly cause pain to the victim. The form of violence may vary from
person to person. The term ‘violence against women has been used to denote a
wide range of act like rape, sexual harassment. But this doesn’t mean that a
man or transgender doesn’t undergo violence. Violence is something which is not
gender specific. Each and every person suffers violence in one way or other.
Sexual violence laws are criminalized
in India under Chapter XVI of the Penal Code, which is titled 'Offences Against
the Human Body.' Non-consensual sexual acts are defined and punished in
sections 354, 354A-D, and 375-376. The Criminal Law Amendment Act of 2013 made
significant changes to the law regarding sexual offenses and closed several
loopholes, which are briefly discussed below. However, it is important to note
that the amendment, among other things, rejected two important proposals made
by the Justice Verma Committee, which was formed in the aftermath of the 2016
Delhi Rape case, namely, the criminalization of marital rape and the
introduction of gender neutrality in the law, because 'the possibility of
sexual assault of men, homosexuals, transgender and transsexual rape is a
reality.'
Sexual violence may be further categorized into
following
1.
Outraging
the modesty of women
Sec 354 [1]of
IPC provides for the offence of outraging the modesty. To constitute the
offence under sec 354 the victim must be the women and the accused must have
used the criminal force to outrage modesty ,As to what constitute modesty, the
penal code is silent but the court rules out Tarakeshwar sahu v.State of
Bihar [2]the
modesty is associated with the female human being as class .It is virtue
attached to the female on account of her sex .Whereas Merriam webster
dictionary differs by putting forward the definition of modesty as “property in
dress ,speech conduct ,which depicts modesty to be gender neutral .For eg IF “A’ a man
is working on his workshop ,through the door comes another man B who tries to grope A .A escapes but B follows
and ultimately grasps him .In this example every ingredient specified for
offence under sec 354 fulfilled except
for the fact the victim is male .In
case if the victim was female then it would be an offence under sec 354 .Even
if the victim and the perpetrator was a female ,it would not be an offence
under sec 354 .
2.
Sexual
Harassment
Sexual Harassment is provided
under sec 354 A[3]
.Sexual Harassment is committed when a man makes a sexual advance or demands
sexual favors or show pornography against the will or makes sexually colored
remarks towards women .for eg If a man A is working in a office B also a male
who is A’s boss, calls A into the cabin and makes sexual favors or forces him
to watch pornography towards A. By general conscience these facts should
constitute offence of sexual harassment. Even if we substitute A and B to be
female, it still remains unchanged. But according to the IPC the above
circumstances wouldn’t constitute sexual harassment. To constitute the offense
of sexual harassment it should be directed from a male towards a female. In the
above illustration such a person would be escaping from criminal liability
3.
Disrobing
Compelling any women to be naked is
an offence under sec 354 -B[4]. It
provides that if any man, assaults or uses criminal force in order to disrobe
or compel any person to be naked such person shall be punished. According to
the definition only man a man can execute offence of disrobing and such can be
executed on female. For eg “A” a male forcefully strips another male “B”. The
above facts constitute disrobing except for the fact that is directed towards
the male, even if we substitute A and B to be female still the facts constitute
disrobing .However the above facts do not fulfill the sine qua non ingredient
of male penetration and female victimization saving the fulfillment of other
essential ingredients necessary for the offence of disrobing .In both the cases
“A” would not be punished as he had not committed an offence under sec 354 -B
and he will be escaping from a liability .
4.
Voyeurism
is a practice of attainment of sexual pleasure from watching others in a naked
state or when they are engaged in sexual activity from watching others in a
naked state or when they engaged in sexual activity .This act is punished under
the IPC under sec 354 -C .Sec 354 provides if any man watches ,captures image
,disseminates recognizes that voyeurism can be committed by a male towards the
female .for eg “A” AND “B” are both
adults which are engaged in a sexual activity
C a female who lives in next door peeps into their private act and makes
videos of same .According to sec 354 C falls short of necessary ingredient that
is male being perpetrator
5.
Stalking
could be committed under sec 354 –D only if a man follows, contacts, monitors, watches,
or spies any women in spite her clear indication of disinterest. The code
recognizes stalking only from a male towars the female. For eg if A is a
celebrity and spied by B a female, it will not be considered as an offence
Rape
Section 375[5]-This
provision defines rape and categorizes the various rape-related acts. The
provision takes a gender-specific approach. It labels men as perpetrators by
using the phrase "a man is said to commit rape," and it also limits
the definition of victim to women. Sections 376 and 376A-D,103 address the
punishment for rape as well as the various degrees or aggravated forms of rape,
such as rape resulting in death, gang rape, and rape by repeat offenders. The
definition provided under sec 375 is quite illustrative .In order to constitute
rape, there must be a penetration of penis or object or manipulation or
application of moth to the private parts of women against her consent ,or
consent obtained under the fraud ,force or coercion .This definition of rape is
quite narrow as stated by FBI Uniform Crime report .USA relied on a similar
narrow definition of rape until 2013 .The new definition of the rape in USA
provides that “the penetration no matter how slight ,of the vagina or anus with
any body part or object or oral penetration by a sex organ of another person
,without the consent of the victim”. The updated definition denotes that the
perpetrator and victim could belong to any gender .The social acceptance of
LGBTQ has revealed their methods of gratifying their sexual needs .A female
with homosexual orientation often uses extraneous substance in commission of
carnal intercourse .In view of those possibility of a female committing rape on
female cannot be ruled out .On the other
hand a male with homosexual orientation if forces another male to intercourse
against his will ,it falls under the offence of the sodomy .These acts fulfils
the ingredients of offence of rape ,but still such such cases cannot be termed
as rape as per the definition provided under sec 375 of the IPC .
2. Child Sexual Abuse: The Protection of Children from
Sexual offences Act (POCSO)
The law
relating to child sexual abuse has also been drafted as a gender -neutral
legislation. Under POCSO, both the victim and the perpetrator are defined in gender
neutral’ terms.[6] The definition
of child includes any ‘person’ below the age of 18 years[7] This
is a welcome step towards extending legal protection to all child victims. It
recognizes the need for the law to address the abuse faced by
children, irrespective of their gender
CONSTITUTIONAL PROVISIONS AND INTERNATIONAL
CONVENTIONS FOR GENDER NEUTRALITY
1.
Article
14 -Equality before law and equal protection of law
The first and foremost right which is
guaranteed to all persons is the right to equality .Equality forbids inequality unfairness and arbitrariness .The state shall
not deny to any person equality before law or equal protection of laws within
the territory of India .Article 14 uses two expression equality before law and
equal protection of the laws .The underline principle of article 14 is that all
persons and things similarly circumstanced should be treated alike, both in
privileges conferred and liabilities impossed .Amongst equals the law should be
equal and should be equally administered.
2.
Article
15 -Prohibition of discrimination on the grounds of religion, race, caste, sex
or place of birth
Article 15(1) -The state shall not
discriminate against any citizen on the grounds only of religion, race, caste, sex
place of birth or any of them
There are number of international
standards and global commitments that stand up for the cause og the cause of gender
equality, India being a signatory to these international conventions. The
Universal declaration of human rights 1948, International covenant on civil and
political rights 1966 and International covenant on Economic Social and
cultural rights 1966, these conventions uphold the rights of individual and
mark no discrimination on any basis. These conventions strongly stand up for
the promotion of gender neutral laws on every aspect. India has however not
succeded in ensuring gender neutral laws on every aspect as some laws are
gender specific which protect only women.
SEXUAL VIOLENCE AGAINST MEN
The criminal law amendment act 2013
brought about changes which were gender specific for sexual offences and
protected only women from the crime. The amendments were made in consonance
with the demands of the more stringent laws for protecting women made principally
by the feminist groups and no protection has been given to male counterpart if
they face sexual violence. Sexual violence can affect anyone, regardless of
age, sexual orientation, or gender identity. We frequently hear about cases of
violence against women, including but not limited to domestic violence, sexual
abuse, and rape. Numerous laws are enacted to protect women, and we frequently
raise our voices in protest of the injustices that they face, but we forget to recognize
that males are also victims of sexual violence, and when we preach about gender
equality, does that equality ever exist? Rape, according to Section 375 of the
Indian Penal Code, is a crime in which men are the perpetrators and women are
the victims, not the other way around. Women are thought to be incapable of
raping men. A rape charge requires the Penile Penetration Condition. It is
physically and biologically impossible for a woman to rape a man, which is why
the Penile Penetration Condition exists. Forcefully penetrating someone is a
more serious offence than forcing someone to penetrate you. Rape is a crime
against both men and women. These reasons, however, are deceptive because a
woman who engages in conjugal intercourse with a man without his consent is
committing rape and should be punished appropriately. Our constitution provides
the 'Right to Equality' in Article 14. This provision, however, is regularly
violated because our legislation does not address concerns of sexual assault
against males or the reality that rules governing rape sanctions completely
exclude men. Children of all genders, on the other hand, are protected by the
'Protection of Children from Sexual Offences Act, 2012. The Indian judiciary
and society talk about men and women having equal rights. Dismally, these
dismissals of making legislation against sexual harassment or rape as gender
neutral highlight a breach of the Right to Equality. While the Indian judicial
system works hard to protect women from sexual violence, it is unjust to ignore
the plight of men who are victims of sexual abuse. However, Indian courts have
recently begun to recognise crimes against men and to punish women who make
false allegations against men, thereby defaming and harassing them. The Indian
government has also tabled the Criminal Law Amendment Bill, 2019, which
proposes gender-neutral rape laws. It is past time for society to prioritise
gender equality. Because of gender-biased laws that favour women in situations
of sexual violence, most cases of sexual violence against men go unreported,
and justice is denied to them. The Indian judiciary should focus on enacting
new gender-neutral legislation or amending existing laws to make them
gender-neutral in order to achieve gender equality in the country. Men who have
been victims of sexual abuse may experience similar emotions as other survivors
of sexual violence, but their emotions are frequently suppressed owing to macho
expectations and fear of societal ridicule. Men are discouraged from speaking
out against injustices because they are afraid of being teased, mocked, or
insulted by those around them, hostile attitude of police. However, with the
advancement of technology and education, as well as global access to
information, individuals are coming out of their shells and realising that
talking about their experiences will not only reveal the tragedy, but will also
set them free emotionally, physically, and intellectually. Many initiatives,
for example, such as the #MeToo and #TimesUp movements, which began as a method
to encourage women to come out and share their stories of domestic and sexual
assault, have also pushed men to confront their offenders. In order to
demoralise male victims, society must abandon the notion that rape is a men's
issue or that sexual violence has developed as a result of the country's
patriarchal foundations. When we hear the word sexual harassment, we
immediately assume that the victim is a woman and that the perpetrator is a
guy. One of the most common areas for sexual violence to occur is the
workplace. Many laws and legislations, such as The Sexual Harassment Act for
the Workplace and The Vishakha Guidelines, have been enacted over the years to
combat sexual violence against women in the workplace. However, no remedy has
been established for males who are sexually harassed at work. This is not to
say that men are not susceptible to sexual harassment at work. Laws have been
put in place to protect women from the depravity that is sexual harassment, but
we keep forgetting that males get harassed at work as well. Male coworkers or
female employers are the most likely perpetrators of sexual assault against men
in the workplace. Men may be required to elevate their shirts, or a comparable
trade-off may exist, similar to what women experience in the workplace. The
only difference is that women have recourse against these harassments, whereas
men must suffer in silence. With the implementation of gender-neutral laws, it
is time to bring equality and eliminate these gender-biased regulations. Equal
attention should be given to the protection of men's rights at the workplace as
it is to the protection of women's rights, and men's rights should be
incorporated into the Sexual Harassment at Workplace Act 2012 as soon as practicable.
The men do not come forward to report such offences because of the social
stigma.
CASES
1.
Jayalakshmi v state of Tamil Naidu-[8]A transgender Pandian woman was detained by
police on suspicion of being involved in
the theft case. She was later found
to have been physically and sexually abused and
raped by police officers and later on committed suicide. The
court revealed that it was a custodial violence with physical and sexual abuse
took a disciplinary action against police officers.
2. Shivani shiv Bhat v State
of NCT of Delhi [9]-Shivani Shiv Bhat, an Indian citizen of the United States, visited his ancestral home. However, he was later
harassed and beaten to heal his gender non conformity and found a shelter with the
help of a local NGO. However, UP and New Delhi police harassed him. It was found to have
been illegally detained and harassed by his family and
police authorities. Finally, the court
upheld everyone's right to certain inviolable rights. It also has a sexual orientation and gender identity regarding the important aspects of the basic night of
self-determination, dignity and freedom
3. PINKI PRAMANIK VS STATE
OF WEST BENGAL [10] Pink
Pramanik, a national athlete, was charged
with sexual assault and rape charges by
a friend who had been cohabiting with he
for three years. According to the IPC,
sexual offences against adults are gender specific. The court ruled that Pinki should be found to be a man within the meaning of sexual offences. As a result of her medical
examination, she was unable to have
sexual intercourse and she was determined not to be charged with
rape.
4.
Shiva Santhosh Dewangan v state of
Chhattisgarh
[11] A transgender woman have been raped. Shivani Dewangan
blackmailed 50,000 transgender women and sexually
acted on the pretext of marriage.
He applied for regular bail. Question: Does the court question of
whether to refer to IPC 375 apply? The definition of rape depends on gender as
it was gender specific. The victims were transgender, so they relied on the
victims of forensics repost. No trace of semen was found here. There were signs
of injury around the victim's vagina but
It gave defendant bail.
5. MSX VS STATE OF UTTARAKHAND[12]-The petition was about a trans person who was identified as a woman raped and blackmailed by the defendant. However, when she filed the
FIR, police claimed that she was a man
rather than a woman because of her biological gender, based on Article 377, which criminalized an unnatural sex. As they argued that She was not female, but a
male based on her biological sex. Aggrieved, by this, she sought to enforce her
right to self-identity her gender for sexual violence, she tried to exercise her right to choose her gender. The petition was submitted to instruct the state government
to treat the
petitioner as a female under Act for treating
the petitioner as a female.
6. NATIONAL LEGAL SERVICE
AUTHORITY VS UOI[13] -The
case was filed by NALSA to legally recognized
person who fall outside the male / female gender binary. (Third Gender)
The court had to decide whether a person
outside the male / female was legally recognized as a third gender. The Apex Court legally recognizes the third gender, discusses gender identity,
has constitutional and international
rights, and directs the state government to develop the actual
legal mechanism of the third gender. did.
Even the Supreme Court confirmed psychological tests, not biological tests.
7. CRIMINAL JUSTICE SOCIETY
OF INDIA VS UOI[14]-The
criminal justice society of India is an NGO organization which filed a plea
before the supreme court to make amendments of sec 375 and antirape laws to be
gender neutral .The Hon‘ble supreme court recognizes the merits of petitioners
plea even requested the parliament to consider the same
CONCLUSION
India as a developing nation has been
taking up reforms and measures with respect to social, economic, political and
cultural development .It is striving to eliminate all that hinders its progress
and the progress of each and every citizen of citizen of the nation .Amidst
such endeavors with all the noble pursuits it becomes our duty to shed false
beliefs and contribute equally to its development Gender equality in all forms
and treatment without any biasness be it men or women ,equality means both
gender at par .The apparent subjugation ,oppression of women and denial of any
rights to them and then with the uprising in the violence against such
oppression and protection of men receding in the background .There is an urgent
need for the laws to be gender neutral and not gender specific .Be it any
subject matter that the laws deals with ,both men and women have the right to
equal protection though gender specific laws has been misused to a great extent
and that too cannot serve as justifiable on the part of legislature which has a
duty to protect every citizen taking into account any slightest possibility
.The duty of the state is to protect all its citizen and even to deter them
from committing any offence against any other citizen and that implies that
citizen can belong to any gender .What has been neglected by all is fact that
men are not provided any protection under law when it comes to sexual violence
They are human beings too and are equally vulnerable at the hands of the same
or opposite sex and are yet deprived from any protection .This being due to the
fact that they have been considered an epitome of superiority, their gender has
been considered to be stronger and superior .This results in the absolute
denial and grave injustice for those men who are victims of sexual violence as
there is absolutely no legal mechanisms
can resort to face of any such sexual violence .Even if he does the society
would mock him he is made to suffer in
silence .The number of crimes against men has been rising but the same have not
been reported and there is no demand by the society for reforms in that
direction .There is a need of hour to consider all sexes as human beings and
the labels of superiority and inferior
and gender roles need to be discarded at the earliest. Laws have been
formulated and will continue to be formulated addressing several issues which
concern the society and that is vital too but change can only be expected when
each one of us resolve to bring about change in the mindset. India need gender
neutral laws on every subject to establish the true meaning of gender equality
in the society. Gender equality isn’t a concept peculiar to the upliftment of women,
it is on the other hand establishing a just and fair order in the society where
both the gender enjoy equal status and opportunity.
There is a definitional rigidity of sexual offences incorporated in our code
which serves as the reason for the escapade of sexual offences which are not
heterosexual in nature. Sexual violence can be committed even against the
natural order of sexes. It should incorporate homosexual abuses and women
perpetrators of sexual offence. we are part of society that has segregated
everything on the basis of sex .But we fail to realise that there is no law of
nature which defines the physical and emotional pain of rape is gender biased
Gender neutral laws are the need of the hour. everyone need to be protected
under laws irrespective of their sex, creed, because sexuality of a person has
nothing to do with the amount of pain suffered by a person., elimination of
social stigma, generating awareness and proper sex education.whenever there arises
any threat to the society, the should comes to the forefront to address the
need of curbing the menace of threat. This process ensures safeguarding the
interest and rights of people and as men are facing sexual violence, there must
be a need to curb theses, arose and need of the laws were enacted to bring
gender neutrality.
[1] Section 354 in The
Indian Penal Code
354. Assault or criminal force to woman with intent to outrage her
modesty.-Whoever assaults or uses criminal force to any woman, intending to
outrage or knowing it to be likely that he will thereby outrage her modesty,
shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.
[2] 2006 8 SCC560
[i][354-A. Sexual harassment and punishment for sexual harassment.—(1) A
man committing any of the following acts—
i.
physical contact and advances involving unwelcome and explicit sexual
overtures; or
ii.
a demand or request for sexual favours; or
iii.
showing pornography against the will of a woman; or
iv.
making sexually coloured remarks, shall be guilty of the offence of
sexual harassment.
(2) Any man who commits the offence specified in
clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished
with rigorous imprisonment for a term which may extend to three years, or with
fine, or with both.
(3) Any man who commits the offence specified in
clause (iv) of sub-section (1) shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine, or with
both.]
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Any man who
assaults or uses criminal force to any woman or abets such act with the
intention of disrobing1 or compelling her to be naked, shall be punished with
imprisonment of either description for a term which shall not be less than
three years but which may extend to seven years, and shall also be liable to
fine.
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[5] Section 375 in
The Indian Penal Code
1[375. Rape.—A man is said to commit “rape”
who, except in the case hereinafter excepted, has sexual intercourse with a
woman under circumstances falling under any of the six following descriptions:—
(First) — Against her will.
(Secondly) —Without her consent.
(Thirdly) — With her consent, when her
consent has been obtained by putting her or any person in whom she is
interested in fear of death or of hurt.
(Fourthly) —With her consent, when the man
knows that he is not her husband, and that her consent is given because she
believes that he is another man to whom she is or believes herself to be lawfully
married.
(Fifthly) — With her consent, when, at the
time of giving such consent, by reason of unsoundness of mind or intoxication
or the administration by him personally or through another of any stupefying
or unwholesome substance, she is unable to understand the nature and
consequences of that to which she gives consent.
(Sixthly) — With or without her consent,
when she is under sixteen years of age. Explanation.—Penetration is sufficient
to constitute the sexual intercourse necessary to the offence of rape.
(Exception) —Sexual intercourse by a man
with his own wife, the wife not being under fifteen years of age, is not rape.]
STATE AMENDMENT
(Manipur) —(a) in clause sixthly, for the
word “sixteen” substitute the word “fourteen”; and
(b) in the Exception, for the word
“fifteen” substitute the word “thirteen”. [Vide Act 30 of 1950, sec. 3 (w.e.f.
16-4-1950) (made earlier than Act 43 of 1983)]. COMMENTS Absence of injury on
male organ of accused Where a prosecutrix is a minor girl suffering from pain
due to ruptured hymen and bleeding vagina depicts same, minor contradictions in
her statements they are not of much value, also absence of any injury on male
organ of accused is no valid ground for innocence of accused, conviction under
section 375 I.P.C. proper; Mohd. Zuber Noor Mohammed Changwadia v. State of
Gujarat, 1999 Cr LJ 3419 (Guj). Penetration Mere absence of spermatozoa cannot
cast a doubt on the correctness of the prosecution case; Prithi Chand v. State
of Himachal Pradesh, (1989) Cr LJ 841: AIR 1989 SC 702.
[6] The Protection of Children from Sexual Offences Act, 2012, s
3, s 5; The Protection of Children from Sexual Offences (Amendment) Act, 2019
[7] The Protection of Children from Sexual Offences Act,
2012, s 1(d)
[8] (2007 )4
MLJ 849
[9] 223(2015)
DLT 319
[10] (2014
SCC ONLINE CAL 18832)
[12] (WP
(CRIMINAL NO )28/2019
[13] (AIR
2014 SC 1863)
[14] W.P.(CIVIL)NO
1262/2018
Article Information
GENDER NEUTRAL LAWS TO COMBAT SEXUAL VIOLENCE IN INDIA: A CRITICAL STUDY
Authors: REBECCA SARA GEORGE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/08
- Issue 7
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International Journal for Legal Research and Analysis
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