sex and equality
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This article is written by Pranzal Jha who is pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.

Introduction

True equality is where society views you as an individual irrespective of your gender. 

We live in the twenty-first century, moving away from the past barriers, in today’s world the role of every human being has changed. Women stepping out of the four walls of their houses shattered those notions of gender roles set in society, causing the world to witness growth in women empowerment and setting examples for others in their respective professions. Women for example the likes of Indra Nooyi, Saina Nehwal, Mary Kom, PV Sindhu, Aishwarya Rai, Sushma Swaraj etc. have proven that they can not only stand shoulder to shoulder with men but also many times outperform them. 

In the present era, where the debates and discussions on empowerment and equality of women have cloaked the globe in a race to make women safety laws, many countries including India have not only overlooked the proper implications of women safety laws but also the concept of gender-neutral laws.

Gender neutrality, in ordinary parlance, would mean avoiding discrimination based on the gender or sex of an individual. 

Sex refers to “a person’s biological and physiological characteristics. A person’s sex is most often designated by a medical assessment at the time of birth”.

Gender refers to “the roles, behaviour, activities, and attributes that a given society may construct or consider appropriate for the categories of ‘men’ and ‘women’. It can result in stereotyping and limited expectations about what people can and cannot do”.

This distinction between the words gender and sex is important in framing policies and also to understand the impact of the policies on the citizens of a nation. 

The meaning of Gender-neutrality has always been misunderstood and often people find it synonymous to gender-equality. 

A simple analogy to address the difference would be:

Gender equality: your office hires the same number of men and women.

Gender neutrality: your office hires the best person for the job regardless of gender.

The Indian Constitution, being the lengthiest constitution in the world, has been clear on the right of every person to get equal protection of the law which comes from the ideology of the great struggle for independence, clearly prohibiting discrimination amongst its citizens on the grounds of religion, race, caste, sex or place of birth.

It is true that the advancement of women has not been equal in all the areas of the country and even till date, one witnesses the atrocities against women of the country which in itself is shameful to encounter even after over seventy years of India’s independence. There is a dire need to re-frame the country’s policies to better implement the laws on sexual offence to uproot these social evils. However, the question that needs consideration is that are the existing laws in the country framed to provide complete protection to every citizen and are these laws enacted as a reaction to the visible evils or as a preventive measure to even protect the certain invisible evils of the society? 

Making our laws gender-neutral is the new challenge before India. The rise of unequal development and crime against women across the nation for instance cases like Nirbhaya, Kathua and veterinarian in Hyderabad etc. that shook the nation’s nerve has influenced the legislature to create some gender-specific laws. However, there have been instances wherein the laws for protection have been used as a lethal weapon, leading to its gross misuse. This has stirred the question of creating gender-neutral laws as everyone needs protection irrespective of their gender. 

Gender neutral laws in India 

172nd Law Commission Report 

The commission recommended changes for widening the scope of the offence of rape and make it gender-neutral. It was the first time in India wherein the sexual offence was viewed in a very broad and futurist matter. Apart from that changes were also recommended in sections such as 376, 376A to 376D. The report also recommended deletion of Section 377 of IPC, proposition which was struck down in the 172nd Law Commission Report 2000. Experts have considered legislating gender-neutral laws for about now 2 decades ago. However, the legislature hasn’t accepted the idea in toto

The Criminal laws (Amendment) Bill, 2012 

The said bill was based on the recommendation of various committees including the 172nd Law Commission Report of making the offence of sexual assault gender-neutral. The Bill proposed amendments in IPC, 1860, Code of Criminal Procedure, 1973 and Indian Evidence Act, 1872. The amendments ran more or less parallel to the 172nd Law Commission report with a major addition of inserting sections 326A and 326B in the IPC to make acid attack a specific offence. The Bill was introduced in Lok Sabha on 4th December 2012, 12 years after the recommendation of the commission. 

The Justice Verma Committee Report 

12 days after the Criminal Laws (Amendment) Bill, 2012 was introduced in Parliament the country witnessed the Delhi Gang-Rape incident. Owing to the national outrage of the government the bill was withdrawn and a 3-member committee headed by former C.J. Verma was formed on 23rd December 2012. The Justice Verma Committee Report underlined the need for India to recognize different sexual orientation and recommended the inclusion of transgender along with other genders, i.e. men and women while drafting gender-neutral laws. 

The committee stated, “……. Since the possibility of sexual assault on men, as well as homosexual, transgender and transsexual rape is a reality, the provisions have to be cognizant of the same”.

The Criminal Law (Amendment) Ordinance, 2013 

The present Ordinance was the next in line after the Criminal Law (Amendment) Bill, 2012. At the backdrop the brutal and inhuman Delhi Gang Rape. The then President Pranab Mukherjee on 3rd February 2013 exercising his powers under Article 123 (1) promulgated the Criminal Law (Amendment) Ordinance, 2013. The said Ordinance was based on the recommendations made by the J. Verma Committee Report. Whereby for the first time in the history of India the laws relating to sexual offences were gender-neutral. However, as it is a temporary law, it was enforced for only 58 days before being repealed by the Criminal Law (Amendment) Act, 2013 which completely ignored the neutrality aspect of the recommendation and made gender-specific laws.

Legislative approach

The sole aim of a legislative body of any country having a constitution is to enact laws that are for the betterment of the society. 

Every legislation affects the rights of every citizen (individually and collectively) and every law once created has or will become reductant. No law can survive forever without being amended. But a good piece of a legislature can withstand the changing times and stay strong for a long period. If a law has to go through frequent changes then that law is weak. 

Post-independence, there have been several changes made with respect to sexual offences: the definition of Rape was widened, new offenses like stalking, voyeurism were added, New statute for protection of minors from sexual assault. However, these changes have come at a price of a Human being. Post-Independence the Indian Legislature concerning crime laws for sexual offence have not been proactive.

The Laws amended or enacted have been the reaction to the happening of an incident for an instant: 

  • Amendment of 1983 was a reaction to the Mathura Case.
  • Amendment of 2013 was the reaction to Nirbhaya Case.
  • Amendment of 2018 is the reaction to the Asifa Bano Case.

The legislative perception towards enacting these laws can be broadly categorized as: 

1) Misinterpretation of women Empowerment: Legislature still in their mindset consider women as an inferior gender. Indeed, women in many states are still not considered equal to men however, the same can be improved by better implementation of laws, by enacting beneficiary laws for the upliftment of women in backward regions and not a creation of gender-specific crime laws. 

2) React Attitude: criminal laws for sexual offence in India are enacted or amended as a reaction to the happening of an event. The Legislature even after been notified through several recommendations is reluctant to accept that even male can be the victim of sexual offences. The attitude of the Indian legislature is of enacting laws for a present situation without giving any thought to the future possibilities. 

According to Mr K.T.S Tulsi “Law needs to be balanced. The balance has been disturbed. All sexual offences should be gender-neutral. Men, women, and other genders can be perpetrators and also victims of these offences. Men, women and others need to be protected.”

The laws related to sexual offences in India currently are gender specific, as a result the law fails to provide protection to a male above 18 years and a person of the third gender in case of sexual offences.

Conclusion

According to an American journalist, Gloria Steinem, “A gender-equal society would be one where the word ‘gender’ does not exist: where everyone can be themselves”.

Moreover, having gender-neutral laws is not something that the world is not aware of as many of the European countries are subject to such laws. Surprisingly, India, where it is striving to be a super nation in all the strata in conjunction, has failed to enact gender-neutral laws for rapes. Countries such as Bhutan, Kazakhstan, Kyrgyzstan have outnumbered India in enacting gender-neutral laws relating to sexual exploitation, discrimination and violence, thereby setting a valuable precedent for our country.

Gender Neutrality in law is not an alien concept for the Indian Legislature.

Apart from the piece of legislatures like Protection of women from sexual harassment at workplace, 2005 and Criminal Amendment laws 2013, there have been Acts such as POCSO Act, 2012, where a child has been defined as “any person below the age of eighteen years”  wherein ‘any person’ signifies gender neutrality, i.e. person of any gender below the age of 18 years is protected by the law. Even the law relating to acid attacks is gender-neutral as the word used in the provision is “whoever”.

In regards to the sex crime laws in India, the legislature and the society do not see men as the victim of such crimes, but this doesn’t mean that men are away from the evil of sexual harassment or rape. The times have changed and so is the eminent need for the change in redundant laws. It is the truth that sexual violence can happen to any soul, irrespective of what his/her age is, what his/her sexual attitude is, and what is his/her gender identity.

Under gender-neutral laws, all genders are equal in the eyes of law, either by explicitly stating every gender in law or by making the language of law gender-neutral.

On 12th July, 2019, Mr. K.T.S Tulsi, a member of Rajya Sabha Introduced a Private bill named, “The Criminal Law (Amendment) Bill, 2019”. 

Post-2013 this is the first time a bill has been brought for seeking gender neutrality in Indian. To have complete gender justice and achieve true gender equality the pending Criminal Law (Amendment) Bill, 2019 should be passed in toto, so that complete protection can be provided to every individual without discrimination based on one’s gender.


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