This article has been written by Anwesha Panda pursuing B.A.LLB(Hons.) from University Law College, Utkal University, Odisha.
Table of Contents
Abstract
India’s legal structure is based on its societal skeleton system. Although India is the land of diversity; nonetheless, it is yet a far-fetched vision for India to be a land of acceptance. Discrimination based on the gender of a person in employment, in workplaces, in public places, and general acceptance in society is still very prominent. However, in the legal context, the notion of gender neutrality refers to equality in the recognition and protection of the rights of all individuals, regardless of their sexes.
The Oxford English dictionary defines ‘Gender Neutrality’ as an adjective that is appropriate for or applicable to all individuals regardless of their gender. It explains the concept that policies, language, and other social organizations should avoid classifying roles based on people’s sex or gender. It focuses on the equality of each individual with no discrimination.
However, women in our country are always the focus of discussion when it comes to violence. A man is always thought to be the offender. But, due to the recent social and economic changes affecting the societal structure, violence is no longer confined to women. Even men are verbally, physically, emotionally, psychologically, and sexually assaulted. Men do not report these abusive behaviors and thus suffer in silence as our laws favor women as victims of violence. These helpless men do not seek redress or get justice for their miserable situation in family and society.
This article focuses on the misuse of gender-specific statutory provisions in our country and highlights its causes and consequences through various instances. It attempts to explore the extent of this problem and finally states why it is extremely important to have gender-neutral legislation. The objective of this article is to determine whether there is a need to change a few legislations in India from gender-specific to gender-neutral. It describes the abuse of gender-specific legislation in India, emphasizing the significance of gender neutrality and gender-neutral laws. Further, it also concentrates on the equality of men and women, as well as people of any other gender legally, with no discrimination.
Introduction
We’ve been talking about equality for several years now. The issue has been swamped by the print media for ages and the digital media in recent years. Everyone talks about equality and how it is important for a healthy society and how it can be accomplished through numerous processes and practices. However, gender inequality towards women is one of the most prominent examples of inequality in the world. Therefore, strong feminist movements began around the mid-twentieth century, focusing on the grotesque disparities and brutalities that women face daily. An urgent need was felt to make legislative reforms that would put women on par with men, hence giving rise to women-centric statutes in India as well as around the world.
Nonetheless, the enactments that were initiated for women were fair and rational for those times, but over time, they have placed men in such a gullible position that they are victimized by these well-intended women-empowering statutes.
Women-centric legislation in India and its misuse
Crimes against women are common in India. They are neither safe nor protected, whether at home, in public, or at work. Given the prevalence of crimes against women, certain laws aimed specifically at women have been enacted in India to protect them.
The following are a few legislations enlisted for the protection of women’s rights in India:
- Protection of Women from Domestic Violence Act, 2005: It is a critical statute that seeks to protect Indian women from various types of domestic violence. It protects women who are in a relationship and are constantly subjected to physical, mental, sexual, verbal, and emotional violence.
- The Dowry Prohibition Act, 1961: It forbids the wanting to give or trying to take dowry from women before, during, or after their marriage. The taking or giving of dowry to the bride or bridegroom and their families at the time of marriage is prohibited by this act.
- The Indecent Representation of Women (Prohibition) Act, 1986: It aims to prevent improper representation of women in advertisements or publications, writings, paintings, figures, or in any other manner.
- The Sexual Harassment of Women in the Workplace (Prevention, Prohibition and Redressal) Act, 2013: To ensure women’s safety in the workplace, this Act seeks to protect them from sexual harassment at their place of work. It ensures that there is no sexual harassment against women in the workplace, both in the public and private sectors. Sexual harassment at the workplace also includes the use of language with sexual overtones, invasion of private space with a male colleague hovering too close for comfort, subtle touches, and innuendos.
- Immoral Traffic (Prevention) Act, 1956: It ensures in protecting women from trafficking for prostitution as an organized means of living.
- Equal Remuneration Act, 1976: It ensures that men and women workers are paid equally for doing the same or similar work. There will be no gender inequality in the context of recruitment or service conditions. Its goal is to prevent discrimination against women in matters of employment.
- Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994: This act will prevent sex selection before or after a woman conceives. It will reduce unwanted and illegal abortions in the country.
- Maternity Benefit Act, 1961: This act regulates the employment of women and maternity benefits mandated by law. It states that a woman employee who has worked in an organization for a period of at least 80 days during the 12 months preceding the date of her expected delivery is entitled to receive maternity benefits, which include maternity leave, nursing breaks, medical allowance, etc.
In addition to the provisions under the Constitution of India, such as Article 14, 15, 16, 19, 21, 39, 39 A, 42, 46, 47, 51A (e), 243 D and 243 T, and women’s specific legislation in India, both the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC) include provisions that benefit and support women. While relevant sections of the IPC deal with dowry deaths, cruelty, rape, abduction, and other offenses, the Code of Criminal Procedure includes safeguards such as a man’s obligation to maintain his wife, the arrest of a woman by female police personnel only, and so on. In addition to all these, there are a number of acts and legislation for the benefit of women.
In Rajesh Gupta v. State of U. P, 2005 Supreme Court (See here), the Court had held that reservation of 50% of posts in favor of female candidates is not arbitrary.
Women-centric laws are enacted to benefit women who are perceived to be oppressed members of society. However, these laws must be viewed from a different and broader perspective as well.
India is frequently chastised for its unkempt treatment of women, but have we ever even considered the possibility of a woman harassing or assaulting a man? Whether through reservations or constitutional provisions, the law is skewed in favor of women. The laws that apply to women’s abuse do not apply to men’s abuse, demonstrating disparities in the legal system. There is no doubt that women outnumber men in terms of being victims, but there are many false accusations leveled against innocent men too. In recent years, it has been noted that there has been a significant rise in the filing of false cases by women against men accusing them of crimes that they have never committed, such as false domestic violence claims, sexual harassment allegations, and even false rape cases. There have been reports of women trying to blackmail and threaten men solely with the intent of extorting money. Another reason for demanding money is maintenance after a divorce. Oftentimes, women do not reveal that they are working professionals when claiming maintenance after a divorce. The majority of such complaints are lodged on the spur of the moment over trivial issues. Women filing such criminal complaints do not think about the implications and consequences of filing such complaints against men.
In Chander Bhan v. State, 2008, High Court of Delhi (See here), the Delhi High Court had ascertained that “there is no iota of doubt that most of the complaints are filed in the heat of the moment over trifling fights and ego clashes. It is also a matter of common knowledge that in their tussle and ongoing hostility, the hapless children are the worst victims.”
The growing instances of false allegations against men in India
We can see several instances where it can be seen that women are misusing their protective laws and victimizing innocent men. One such incident is of a young man who committed suicide a few years ago, and the news was widely circulated at the time. The said incident occurred a week after the man was found not guilty of the domestic violence charges. There was not enough proof when he was arrested, but even then, he was arrested to just get the woman justice and to assert that women-centric laws were for the safeguard of women and to indicate that men were the culprits of such offenses. He was later found to be innocent. But when he returned to his usual routine, things were no longer the same for him. He lost his job, and people all around him continued to treat him like a criminal, making sarcastic remarks and demeaning him. He couldn’t stand it any longer and took his own life.
Similarly, on August 23, 2015, Jasleen Kaur, a student at St. Stephens College, Delhi University, posted a photo of a man named Sarvjeet Singh on Facebook, claiming that he had harassed her and made obscene comments. The post quickly went viral, and the man was arrested. Everyone lauded the woman, including famous Bollywood actors and the Chief Minister of Delhi, Mr. Arvind Kejriwal. Even so, the Delhi Police Commissioner had also announced a cash reward of Rs.5000/-. The boy was labeled a “national harasser and pervert” by the media and society. He was labeled as “Delhi ka Darinda”. The twenty-three-year-old Kaur moved to Canada shortly after her viral post to pursue a degree in Human Resources. Meanwhile, Singh was struggling to keep his job and had to go to the police every time he needed to leave the city. However, it was discovered after the investigation that it was Jasleen who had verbally abused and misbehaved with Sarvjeet. Sarvjeet was acquitted of all the charges in the molestation case after 4 years in 2019.
Recently, a video that has gone viral on social media shows a woman identified as Priyadarshini Yadav, getting into a brawl with a cab driver named Shaddat Ali in Lucknow, Uttar Pradesh. In the video, the female is seen slapping the driver more than 20 times. According to the police, the incident occurred on July 30, 2021. When asked why she was attacking Ali, the girl can be heard saying that the cab driver had hit her. Meanwhile, another video of CCTV footage from the signal that was shared on social media showed her walking down the street amid heavy traffic. The cab driver, Saadat Ali Siddiqui, stated that the lady walked in front of his car on the night of the incident, even though the traffic light was green. According to Saadat Ali, he had immediately applied the brakes, after which the woman began pushing him against the car. She even thrashed his cell phone and broke the car’s side mirrors. Furthermore, she had even lodged an FIR against Shaddat Ali stating that he had hit her with his car. Shaddat was even arrested and put behind bars. It was only after the CCTV footage was shared on social media that the truth came out. The netizens and the people on social media slammed her and started demanding her arrest. Finally, an FIR was filed against her.
The question that arises here is, what if the CCTV footage was not out in the open? The police would have believed the girl’s side of the story and would have proceeded with the case according to it.
On March 16, 2020, a woman from Maharashtra’s Palghar district lodged an FIR against a man for purportedly ‘drugging and raping her. Afterward, she filed a petition in the Bombay High Court, claiming that she wanted the FIR to be quashed as she did not wish the case to be initiated. She had mentioned pressure from the family was the reason for moving legally against the man. In the Hon’ble High Court, public prosecutor Aruna Kamat Pai challenged the plea, claiming that the case was under investigation and that the police might well file a charge sheet shortly. She demanded that a hefty fine should be imposed on the lady if the court ruled in her favor, quashing the FIR. Later, the hon’ble court imposed a fine amount of 25000/-to be paid within four weeks.
On December 9, 2020, the Delhi High Court granted relief to Lalit Kumar, a man who had been falsely booked by a woman for filing a false rape case against him. Justice Suresh Kait issued the decision, which quashed the FIR and thus cleared the man of all charges and allegations. The lady who filed the case later admitted that she had done so for personal vendetta, “to teach the man a lesson following a tiff”. Even though the court wanted to charge her with lying and deceiving the court, other situations were taken into account, and she was not charged.
The JMFC Court in Mangalore had issued a non-bailable arrest warrant on September 21, 2014, against a lady doctor and her father for falsely framing her husband and in-laws in a dowry case. She was a resident of Devangere and had stayed with her husband for just fifteen days since their wedding. The doctor would compel her husband to live in her paternal home for as long as she continued to live with him and blackmail him by threatening to file a false dowry case if her demands were not met. The woman filed a false case of dowry harassment because her husband had refused to join her at her paternal home.
In Sushil Kumar Sharma v. Union of India, 2005 (See here), the Hon’ble Supreme Court had observed that complaints under section 498A of the Indian Penal Code (IPC) were being filed based on a personal vendetta. It was stated that “… by misusing the provision, a new form of legal terrorism may be unleashed.” In the judgment, it was also stated that the legislature should find ways to appropriately punish those who file frivolous complaints.
Furthermore, the Hon’ble High Court of Bombay in one of its judgements of 2017 had ruled that filing a false dowry case against the husband amounted to cruel treatment on the part of the wife and could be grounds for divorce.
In Rajesh Sharna & Others v. State of U.P.& Another, 2017 (See here), the Supreme Court did the unprecedented. It issued a directive to the police and magistrates that no automatic arrests or coercive actions would be carried out in response to complaints filed under Section 498A without first ascertaining the veracity of the complaints and the allegations. A bench of justices AK Goel and UU Lalit asserted that there was an increasing trend of cases in which women are abusing the legal provision to indict their husbands and family members, including their parents, minor children, grandparents, and siblings — in criminal cases based on malicious or frivolous complaints, which is a gross violation of the human rights of innocents. In addition, it was stated that the complaints would be verified by a special police officer and a district-level Family Welfare Committee, which would ideally consist of three members who could be “paralegal volunteers, social workers, retired people, wives of working officers, and other citizens who may be deemed to be fit and willing”. However, the court assured that grave physical injury or death of the aggrieved would be exceptions to this directive.
By seeing the aforementioned cases, it could be argued that laws intended to protect women are frequently abused. However, sweeping generalizations here would be highly incorrect as the situation and position of women in our society are not as decent as it should be or as it is claimed to be. Nonetheless, this cannot be used to legitimize and defend the unpardonable deception that some women use these days to destroy innocent lives. Sexual assaults, rapes, dowry harassment, and eve-teasing are all very real issues and heinous crimes. When even one woman abuses these protective laws for personal vengeance or reasons best known to her, she fails many women who genuinely deserve justice and for whom these laws are desperately needed.
Men agonizing and enduring in silence
By seeing the growing pattern of false allegations and misuse of laws that are enacted for the protection of women, a question that arises in the minds of many is, “Are men vulnerable?” The answer to the question is YES, men are vulnerable. They are humans and have feelings. They have their highs and lows in their lifetime. It is because of the mindset of people that they cannot express themselves freely. The concept of patriarchy is still prevalent in our society today. With patriarchy, the idea and concept of toxic masculinity have grown exponentially. Toxic masculinity refers to traditional societal ideals. These are a set of characteristics, behaviors, responsibilities, and cultural expectations associated with boys and men that can be harmful not only to women and society but also to men themselves.
To give everyone an idea, phrases such as “Be a man”, “Only women cry”, “Men cannot wear makeup”, and so on are all examples of toxic masculinity. The concept of toxic masculinity has become so entrenched in our system that it is now slowly devouring it.
Men are molested, body shamed, subjected to domestic violence, including physical, mental, and emotional abuse, and much more. They are often unable to express their suppressed emotions out in the open because they are ashamed and afraid of being ridiculed and labeled as weak. Therefore, cases, where men are the victims, go unreported. All of these have resulted in the worsening of the mental health of men, and even there has been an increase in the rate of suicide and self-harm in them.
The forgotten gender-men
The principle of equality is enshrined in our Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties, and Directive Principles of State Policies. The Constitution of India not only guarantees equality to women but also directs the state to embrace and consider enacting laws to promote positive discrimination in favor of women and children.
The idea of Positive Discrimination emerged because the stature of women in pre-independent India was underprivileged and deprived. Women in our society do not have the same living standards or privileges as men in our society used to. The presence of male superiority and patriarchy in our nation was the prominent cause of their discrimination. They were underappreciated, and their time was constrained to only doing household chores and taking care of family responsibilities. They were not permitted to assist in the execution or enforcement of other activities. Women were oppressed and were even forbidden from expressing or communicating their ideas or opinions. More than anything, some age-old ancient practices that were and still are considered social evils were followed. Sati was one of these practices, in which women were tossed into the pyre of their husbands and burned alive. Polygamy, child marriage, female infanticide, and other practices were also practiced. Moreover, even today, some of the practices are still alive, like polygamy and female infanticide. Child marriages are still prevalent in some remote corners of our society.
So, the incorporation of women-centric provisions into our Constitution was an attempt by our leaders to improve the standard of living for women in our country and to make it easier for them to stand on equal footing with men in our society.
In Air India v. Nargesh Meerza, 1981, Supreme Court (See here), the Air India Regulations provided for the retirement of an air hostess if she became pregnant within four years of service. The Hon’ble Supreme Court had ruled that those conditions were unreasonable and arbitrary. It had further observed that terminating the services of air hostesses in such circumstances was not only an insensitive and cruel act but also a violation of Article 14 of the Constitution.
The author strongly supports positive discrimination against women. However, the author believes that a minor change in gender-specific laws could make a significant difference in society. We all know that ‘Change is the Only Constant,’ and with changing times, laws must also be modified.
Men and women are the two wheels that contribute to the smooth and balanced movement of the vehicle known as society. Even minor damage or injury to any of the wheels would cause society to crumble.
The author agrees that women in our society are oppressed, deprived, abused, mistreated, and subjected to a variety of other ills. However, men in our society are also subjected to these, albeit in smaller numbers. They are not just reported; they are not brought to light because of the name-calling and repercussions it could have. As a result, we must institute certain changes, beginning with teaching our children the principle of equality and working to have laws changed to be gender-neutral.
Besides, in the landmark case of National Legal Services Authority v. Union of India, 2014 (See here), the Hon’ble Supreme Court had explicitly stated that transgender people should be recognized as a third gender and should be entitled to all Fundamental Rights, as well as specific benefits in education and employment.
Moreover, in the case of Navtej Singh Johar v. Union of India, 2018 (See here), a five-judge constitution bench of the Supreme Court of India that consisted of Chief Justice Dipak Mishra and Justice Dhananjaya Y. Chandrachud, Ajay Manikrao Khanwilkar, Indu Malhotra, and Rohinton Fali Nariman, decided in favor of Section 377 decriminalization. They held that consensual sexual acts between adults are not a crime, and overruled its very own decision of 2013 pronounced in the Naz Foundation case, calling the previous law “irrational, arbitrary, and incomprehensible.”
Hence, the author is not opposed to laws enacted to protect and uplift women but wishes to state that more gender-neutral provisions can be enacted for the benefit of our society and generations to come. The decriminalization of Section 377 of the Indian Penal Code is a wake-up call for our nation to recognize that it has failed to acknowledge the fact that the demand for flexibility in the current legal scenario is evident. It can be stated that our country has reached a point at which gender-neutral laws should be considered necessary to eliminate the abuse of the existing gender-specific laws and to safeguard the integrity and the chastity of the Fundamental Rights guaranteed under the Constitution of India equally to every individual of our nation.
Suggestions
These are a few suggestions which if included in our laws, could help in bringing about gender-neutral provisions in our legal system.
Section 498A of the Indian Penal Code, 1860, safeguards a woman from the cruelty of her husband and his family and relatives. by replacing the word ‘husband’ with the word ‘spouse’. It could be more gender-neutral while also being more positive and propitious.
In parallel, the required alteration and amendments could also be made in the Protection of Women from Domestic Violence Act, 2005, which is consistent with Section 498 A of the Indian Penal Code, 1860; or a similar provision could be enacted for the protection of men as well.
There are laws made to protect women from sexual harassment in the workplace, but there are no laws as such which could help men. Hence, enacting such laws could be a step towards gender neutrality.
As a response to the landmark case of Sakshi v. Union of India, 2004, Supreme Court (See here), the Law Commission of India had proposed in its 172nd report in 2000 to replace the definition of rape with that of ‘sexual assault’ to encompass all genders within its scope.
A few years down the line, the Justice Verma Committee of 2012 (See here) advocated gender-neutral laws in its report. It suggested using the word “person” instead of “woman” to cover all forms of sexual violence. The Criminal Law (Amendment) Ordinance 2013 was published in The Gazette of India, supporting the Committee’s position. Sexual harassment, voyeurism, and stalking were added to the Indian Penal Code in the spirit of gender-neutral laws, and amendments and deletions were made to the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act.
However, the ordinance on making all laws gender-neutral only lasted 58 days before being repealed and replaced by The Criminal Law (Amendment) Act 2013, which reinstated gender-specific laws.
Conclusion
Unfortunately, the concept of gender neutrality is regarded as a “backlash against feminism”, when in fact it is a step toward achieving equality and eliminating the persistent battle between genders that serves as an obstacle to development, with the rights of one class abrogating the rights of another.
According to the National Coalition of Anti-Violence Projects (NCAVP), nearly half of the transgender people in India have been assaulted or raped at certain a point in their lives. Apart from the criminal statutes about sexual offenses failing to protect the male community and the third gender, it is apparent that the constitutional mandate is continuing to create an intelligible differentia in favor of the women community that crushed the core purpose of the Fundamental Rights.
With the progressive evolution of the socio-legal framework, it has now become extremely necessary to acknowledge the rights of men and the LGBTQ+ community because of the decriminalization of Section 377 of the Indian Penal Code, and also because Violence is gender-neutral. Physical, verbal, emotional, and financial abuse can all be perpetrated by women against other women or men. Sexual abuse can also be inflicted by a woman on another man and vice-versa. As a result, it is critical to enact gender-neutral laws and provisions that prohibit all forms of violence, whether fomented by a man, a woman, or anyone else in the matter thereof. Ultimately, there is a dire need for restructuring of the laws to protect the victims of a crime instead of a particular gender.
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