Gender Neutrality Laws
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This article has been written by Aayush Akar and Saurav Kumar, students of National Law University Odisha, Cuttack. 

Introduction

Gender inequalities are one of the most prominent manifestations of inequality on the planet.

Gender equality affects each member of the community at large and shapes the very foundation of a just community, and so the problem of social inequality is of immense significance and gigantic repercussions enveloping an all-encompassing and infinite canvas. [1]

Gender disparity in India applies to wellness, employment, social and political differences between males and females in India. [2] Numerous international indices of inequality rate India differently on each of these variables, and also on a weighted scale, and these measures are divisive. Gender disparities and their social roots affect India’s sex ratio, women’s health over their lifespan, educational performance, and economic environment. Gender discrimination in India is a serious problem that affects both males and females. [3]

Gender inequality has affected several dimensions of women’s lives from job growth and advancement in mental health problems. Although legislation in India on rape, dowry and adultery which has kept women’s safety at priority, huge discrimination appears to be disturbing and affecting the lives of men today. Each citizen of India has also been granted certain rights to protect their interest in the community towards any aggression which are brought into force by the judiciary concerning some restrictions. [4]

Unnao rape case shows the reality of equal rights to women enshrined in the Indian constitution. The woman died after suffering severe burn injuries which were caused due to fire set on her way to testify against the accused person. Rape and sexual allegation cases have been in limelight since Nirbhaya case. Six men raped Nirbhaya in New Delhi and killed her brutally which led to huge protest all across the country and prompted the Government to set up J.S. Verma Committee to make suggestions in rape law. [5] The Union Government set up the Nirbhaya Fund for meeting expenditure to enhance the safety of women. But on the contrary, the terrible gang rape and assassination of a woman vet in Telangana and similar incidents in Bihar, Rajasthan and Karnataka demonstrate that females are as vulnerable and afraid currently as they were on the eve of the “Nirbhaya Gang Rape” case. But now justice was finally given to Nirbhaya after 7 years after all the 4 convicts were executed to death. Now India has made strict laws like amendment in POSCO Act, 2012 like the death penalty can be given to convict of rape of minor or child below 12 years of age. Even the government is planning to set up fast track courts to deal with such cases within 6 months. [6]

Similarly “Men’s Rights Movement” in India has begun to protect men from undue harassment and mental torture. They are claiming from gender-neutral legislation as most of the laws in India are favouring women. Men committed suicide in New Delhi 2016 and his parents purported that he did due to unnecessary mental torture and harassment by his spouse. Finally, the case was registered under Section 302 and 34. There is a requirement of amendments in anti-dowry legislation i.e. Section 498-A as most of the laws are causing humiliation to men and in-laws. [7]

“Lesbian, gay, bisexual, transgender and queer (LGBTQ)” people in India suffer legal and social difficulties that are not faced by non- persons. The nation has abolished the colonial-era statutes that expressly enforced against homosexual sex and sexual identities, but other substantive provisions have not been given for, including non-discrimination or same-sex marriage. Since 2014 in the famous NALSA case, the Top Court allowed them to register as the third gender of the country. Similarly, Navtej Singh Johar [8] case repealed colonial-era Section 377 and declared it as unconstitutional.

In this article, we are going to discuss the topic neutrally by discussing the topic in light of rights of all gender including transgender rights.

Men’s Right in India

India is a common-law nation with varied customs, a variety of religious communities and a history that goes back to centuries. India’s constitution has been seen as a central element for social growth with the democratic principle of equality. India’s sustained political freedoms are exceptional among the developing countries of the world; yet, given socio-economic developments, there is unprecedented misery, religious and social class-related brutality, separatism, or other social prejudices still widespread in the region.

Women in India are safeguarded by the different statutes in India and they can file complaints against anyone for the infringement of their rights. Despite having equal fundamental rights given to men and female, the rights of men are not enunciated as compared to women. In part 3 of the Indian Constitution, men can avail his fundamental rights throughout India regardless of their religion, race, gender, place of birth. Most of these rights guarantees liberties to men so they can live without coercion and harassment. [9] 

The need for gender neutrality is of high requirement in the rape legislation as from the beginning women are only considered as the victim may be due to patriarchy prevalent in Indian society. Even due to the rise of women empowerment and feminism, the concept of gender neutrality laws was hindered. Most of the provisions of IPC which states about offence against women allude men only as a criminal. It is right that from the Tukaram case to Nirbhaya case that men were the only perpetrator but the Central Government should accept the JS Verma committee suggestion for making some laws gender-neutral but that was also rejected. [10]

Now the scenario is changed, many PIL(s) have been filed in various High Court(s) and Apex Court for making rape laws to be gender-neutral. In 2017, Sanjiv Kumar had questioned the legality of existing rape laws which only consider men to be the perpetrator in Delhi High Court. It was mentioned that now the scenario is changed and is requisite from the society to think “beyond the male-on-female paradigm”. Centre in its application submitted that the laws related to rape should not be altered as some section are requisite to keep a check on the rising crime against women. [11] Similarly, Apex Court dismissed the PIL by Rishi Malhotra where PIL mentioned for making rape laws to be made gender-neutral as there are no laws to protect males from sexual harassment. The case was Rishi Malhotra v. Union of India [12].

The Law Commission recommended making laws to be gender neutral by substituting the word “rape” with “sexual assault”. The Union Government agreed to make legislation to be gender-neutral after the Nirbhaya incident. The Justice Verma in its report suggested using “person” instead of “women” to cover all forms of sexual violence. But Criminal Law (Amendment) Act, 2013 restored to the gender-specific definition after criticism from the feminist groups due to prevalent patriarchy present in the society. [13]

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Women’s Right in India

Democratic countries like the USA and the UK which established themselves way before India gained its independence from the Britons, for a long time in these countries women of the society were not allowed to vote during the elections. They didn’t have the power and right to vote in the elections. After a long time when women started oppressing and revolting against this law, they finally won the battle that they were fighting for and they finally got the voting rights in the elections, women of the UK gained the right to vote in 1918 and women of the United States of America gained the right to vote in 1920, the battle wasn’t easy for women of the United Kingdom because they fought for it more than two centuries after the first elections took place and more than a century when first elections took place in the United States of America. This gives a basic idea of how much time it takes for enacting Judiciary and legislation to make sure there is gender justice in India. We are still long ahead to achieve what is termed as ‘equality’ in the sphere of gender. [14]

Constitutional Provisions for Women

Our India’s Constitution not only focusses on awarding equivalent rights to women but also focusses on how to empower them in society so that they don’t face any sort of discrimination and segregation financially, economically and politically. Even though some constitutional provisions like Articles 14, 15, 16, 39 and 42 of the Indian Constitution that provides the concept of gender justice like equality before the law or equal protection of the law; no discrimination on the grounds of sex, race, religion, caste, residential area or place of birth, and equal opportunity to every citizen of India in matters related to the employment sector. There are certain other articles also that especially promote the idea of women empowerment in the society. These are detailed as follows:

  • ARTICLE 51 (A)(e): There should be a sense of brotherhood among the citizens of India and there should be no practice related to hurting the sentiments of women.
  • ARTICLE 243 (D)(3): One-third of the total number of seats should be reserved for women (including for women who come from disadvantaged sections like SC/ST) in Panchayats and is to be filled by direct election.
  • ARTICLE 243 (D)(4): One-third of the total number of seats should be reserved for women as a chairperson in the office of Panchayat.
  • ARTICLE 243 (T)(3): One-third of the total number of seats should be reserved for women (including for women who come from disadvantaged sections like SC/ST) in Municipality and are to be filled by direct election.
  • ARTICLE 243 (T)(4): One-third of the total number of seats should be reserved for women (including for women who come from disadvantaged sections like SC/ST) in Municipality as Chairperson as the state’s legislature provides. [15]

Legal Provisions for Women

To make sure there are law and order in the society and everyone follows it accordingly so that there is no disturbance in the community and everything runs smoothly there are some special laws and provisions that are made by the Centre and State’s legislature to safeguard the dignity of women. These laws and provisions are made keeping in mind that they don’t face any kind of social segregation and violence against them whether it be verbally or physically. These rules and guidelines are made to help and support the working as well as non-working women of society. The acts that are done in immoral and mala fide nature which may cause grievous hurt or damage to the other person are called crime and these wrongful acts like Murder(Sec. 300 IPC), Cheating(Sec. 415 IPC), Robbery(Sec. 390 IPC) etc. are unlawful acts and these unlawful acts mainly against women are termed as “Crime Against Women”. These are broadly classified into two categories:

Wrongful Acts that are identified as Crime against women under the Indian Penal Code, 1860:

  • Kidnapping and Abduction (Sec. 363-373)
  • Rape (Sec. 376)
  • Molestation (Sec. 354)
  • Physical and Mental Torture (Sec. 498-A)
  • Sexual Harassment (Sec. 509)
  • Attempts and Deaths related to Dowry (Sec. 302/304-B)

Some Special Acts and Provisions that protect the interests of a woman:

  • The Maternity Benefit Act, 1961
  • Women’s Reservation Bill, 2008
  • The Employees State Insurance Act, 1948
  • The Sexual Harassment of Women at Workplace Act, 2013
  • The Criminal Law Amendment Ordinance, 2018 [16]

Some of the Important Initiatives for Women by Indian Government

  • NATIONAL POLICY FOR EMPOWERMENT OF WOMEN, 2001: This policy was made in the year 2001 by the Department of Women and Child Development under the Ministry of Human Resource Development and this policy aims to empower women. [17]
  • NATIONAL COMMISSION FOR WOMEN: A committee was made by the Centre in the year 1992 to constantly check and see all the matters related to the rights of women and amend new laws as necessary. [18]
  • RESERVATION FOR WOMEN IN LOCAL SELF-GOVERNMENT: The Parliament passed the 73rd Constitutional Amendment in the year 1992 which made sure that women get one-third of the total number of seats in local offices whether in city or village.” [19]

Apart from the initiatives taken by the government; The Indian Judiciary has actively taken part in the issues related to women. These trademark cases changed the future course of action for women. For Example, in the case of C.B. Muthamma v. Union of India [20] the constitutionality of the “Indian Foreign Service Rules of 1961” was questioned. The main issue of this case was that a woman employee has to get written permission from the government before her marriage and she has to give in writing that she may quit her job after her marriage. The Supreme Court struck down this law stating that this is unconstitutional and derogatory against women.

In another landmark judgment was given by the Supreme Court in the case of Air India v. Nargesh Mirza [21] which held that firing of an air hostess from their service based on their first pregnancy is unconstitutional and arbitrary. In the case of Pratibha Ranu v. Suraj Kumar [22], the main issue was who enjoys the Stridhan property in marriage. So, in this case, the Supreme Court gave a remarkable judgment stating that a married woman has complete ownership of the Stridhan property and she has full control over it.

In the case of Vishaka and Ors. v. State of Rajasthan [23] the main issue was that women facing sexual harassment at their workplace. The Apex Court in this matter held that any type of activity that is immoral and derogates the dignity of women at their workplace is an infringement of Article 14, Article 15 and Article 21 of the Indian Constitution. To prevent sexual harassment faced by women at their workplace Supreme Court laid down certain guidelines and these guidelines are called Vishaka Guidelines.

Transgender’s Rights in India

The Fundamental Rights given to men and women of the society are also available to the third gender as well. They have the same Fundamental Rights as to ours and them equally the beauty of our constitution like Articles 14, 15 and 23 etc. The Court has legally recognized the third gender as Transgender in both civil as well in criminal status. Now, they have the same fundamental rights and constitutional provisions as men and women of the society and now they can enjoy these in the same manner. After the decriminalization of sec. 377 of IPC in the landmark judgement given by the Top Court in 2018 in the case of Navtej Singh Johar v. Union of India [24] now they can consensual sex including homosexual sex. Certain bills that gave rights to Transgender persons are detailed as follows:

    • THE RIGHTS OF TRANSGENDER PERSON’S BILL, 2014: The third gender was legally recognized by the government on the order of the Supreme Court and asked them to reserve their seats for education and employment. [25]
    • THE RIGHTS OF TRANSGENDER PERSON’S BILL, 2015: A Private member’s bill was passed by Upper House regarding the right of a transgender person which defines transgender as a psychosomatic individual and stating about reservations. [26]
    • THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2016: The government opposed Rajya Sabha’s bill and introduced new Transgender Person’s Bill (Protection of Rights) which defined transgender as Biotic Appearance and stating no reservations for them. The main crux of this bill was drawn from the landmark judgement given by the Top Court in the case of National Legal Services Authority (NALSA) v. Union of India. [27] Their legal identity was given to them in this case. [28]
    • TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2017: The bill was introduced to tackle social issues faced by the transgender and how to empower them in society. [29]

We have mentioned in our article that though the constitution of India has granted equal rights to the citizens to the country. But there are some legislations like rape laws which are granting more protection to the women due to the presence of patriarchy in the society. But now the time has changed and there is a requirement from the part of lawmakers to alter these laws to make it gender-neutral.

Conclusion

Most of the laws in India are indeed meant both the male and female and now it’s time for the lawmakers to include transgender in those laws. But, astonishingly, the rape laws are female-centric. Gender specificity cannot be said to serve any objective in sexual harassment law any more. There is no reason to suspect the pervasiveness of sexual assault outside the established framework. Only the establishment and implementation of gender-neutral legislation would be successful in increasing the coverage of these crimes. The legal definition of rape must be reassessed, sexual assault must be categorized in compliance with the varying degrees of harm caused by each, and each must always be described comprehensively.

Reference

[1] Claire Melamed, Gender is just one of many inequalities that generate poverty and exclusion | Claire Melamed, The Guardian, Mar. 9, 2012, https://www.theguardian.com/global-development/poverty-matters/2012/mar/09/gender-inequality-poverty-exclusion (last visited Apr 5, 2020).

[2] Carol Vlassoff, Gender Differences in Determinants and Consequences of Health and Illness, 25 Journal of Health, Population, and Nutrition 47–61 (2007).

[3] The Roots of Gender Inequality in India by D. Amutha :: SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2906950 (last visited Apr 5, 2020).

[4] COI-updated-as-31072018.pdf, http://legislative.gov.in/sites/default/files/COI-updated-as-31072018.pdf (last visited Apr 5, 2020).

[5] Nirbhaya case: Four Indian men executed for 2012 Delhi bus rape and murder- BBC News, https://www.bbc.com/news/world-asia-india-51969961 (last visited Apr 5, 2020).

[6] Five years after the gang-rape and murder of Jyoti Singh, what has changed for women in India? | Society | The Guardian, https://www.theguardian.com/society/2017/dec/03/five-years-after-gang-murder-jyoti-singh-how-has-delhi-changed (last visited Apr 5, 2020).

[7] Man commits suicide, wife files dowry harassment case against him- Mail Today News, https://www.indiatoday.in/mail-today/story/man-commits-suicide-wife-files-dowry-harassment-case-against-him-325137-2016-05-24 (last visited Apr 5, 2020).

[8] Navtej Singh Johar & Ors. v. Union of India the Secretary Ministry of Law and Justice W. P. (Crl.) No. 76 of 2016.

[9] Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law, https://www.cambridge.org/core/journals/asian-journal-of-comparative-law/article/beyond-the-binary-rethinking-gender-neutrality-in-indian-rape-law/9BC983FB009B7BBDEB78CED0BC5144C0/core-reader (last visited Apr 5, 2020).

[10] Justice Verma Committee Report Summary | PRSIndia, https://www.prsindia.org/report-summaries/justice-verma-committee-report-summary (last visited Apr 5, 2020).

[11] Delhi HC issues notice to Centre in PIL seeking gender-neutral IPC rape, https://www.barandbench.com/news/delhi-high-court-rape-section-375-gender-neutral (last visited Apr 5, 2020).

[12] Rishi Malhotra v. Union of India Writ Petition(s)(Criminal) No(s).7/2018.

[13] Structural Violence on Women: An Impediment to Women Empowerment, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5561688/ (last visited Apr 5, 2020).

[14] 6 February 1918: Women get the vote for the first time- CBBC Newsround, https://www.bbc.co.uk/newsround/42794339 (last visited Apr 5, 2020).

[15] Constitutional&Legal_Rights.pdf, http://mospi.nic.in/sites/default/files/reports_and_publication/cso_social_statices_division/Constitutional&Legal_Rights.pdf (last visited Apr 5, 2020).

[16] Important Constitutional And Legal Provisions For Women In India- Women’s Rights, http://www.legalserviceindia.com/helpline/woman_rights.htm (last visited Apr 5, 2020).

[17] nationalwomenpolicy.pdf, http://www.dhaatri.org/documents/nationalwomenpolicy.pdf (last visited Apr 5, 2020).

[18] ncwact.pdf, https://wcd.nic.in/sites/default/files/ncwact.pdf (last visited Apr 5, 2020).

[19] Panchayati Raj, 73rd Constitutional Amendment and Women on JSTOR, https://www.jstor.org/stable/4403611#metadata_info_tab_contents (last visited Apr 5, 2020).

[20] C.B. Muthamma v. Union of India AIR 1868 (1979).

[21] Air India v. Nargesh Mirza AIR 1829 (1981).

[22] Pratibha Ranu v. Suraj Kumar AIR 628 (1985).

[23] Vishaka and Ors. v. State of Rajasthan SC 3011 (1997).

[24] Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice W. P. (Crl.) No. 76 of 2016.

[25] trangder-E.pdf, http://164.100.47.4/billstexts/rsbilltexts/AsIntroduced/trangder-E.pdf (last visited Apr 6, 2020).

[26] Draft Rights of Transgender Persons Bill 2015.pdf, https://www.prsindia.org/uploads/media/draft/Draft%20Rights%20of%20Transgender%20Persons%20Bill%202015.pdf (last visited Apr 6, 2020).

[27] National Legal Services Authority v. Union of India WRIT PETITION (CIVIL) NO.604 OF 2013.

[28] The Transgender Persons (Protection of Rights) Bill, 2016 | PRSIndia, https://www.prsindia.org/billtrack/transgender-persons-protection-rights-bill-2016 (last visited Apr 6, 2020).

[29] Transgender-Persons-Protection-Bill-2017-.pdf, https://www.csbronline.org/wp-content/uploads/2017/04/Transgender-Persons-Protection-Bill-2017-.pdf (last visited Apr 6, 2020).


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