This article has been written by Adithya Prasad pursuing the Diploma in International Business Law from LawSikho. This article has been edited by Aatima Bhatia (Associate, Lawsikho) and Dipshi Swara (Senior Associate, Lawsikho).
A co-existential crisis that isn’t understood completely
The world is seeing a remarkable movement. For a long time, the concept of gender equality remained a shrewd and dangerous conversation for all genders. Dating back ages, having roles that further motivated societal chances for surviving hostile conditions. It involved two primary roles, combat and sustenance, each having a particular gender assigned to have maximum efforts towards the goal of existence and if survival is ensured, evolve into a more stable species.
Combat as a role was often filled by men as they were biologically stronger and were accustomed to protection details, however, do not mistake it to have been only for men. They have documented accounts of women defenders who were assonated to combat detail for the survival of that community. The other role of sustenance was often filled by all genders including children, this involved anything from gathering food to the maintenance of the community itself. This maintenance included activities like food, shelter, education, and preservation. The goal was co-existence through maximum involvement and contribution.
Coming towards the modern-day, this is often a fact misquoted by many. This system is currently quoted as being too gender-biased and restraining on one over the other. However, at that time what we must understand is that the past demanded one goal – survival.
Thanks to evolution, we can rest easy that most dangers are nothing more than a child’s bad dreams. Now, however, we are faced with a different issue. The metamorphosis of that survival structure, into what is now an entirely new system which is a cause for major concern. We must understand that the global economy is run by every person across all genders that exist. However, this new understanding that crept in post the survival era tipped the favour towards certain genders for acts against holding any accountable for anything that they do. A categorical classification for reasons of power, wealth, etc.
In the modern-day, is gender equality still a myth governed by those who are hopeful for an egalitarian society or is there a deep-rooted issue that ends at the genders never becoming equal?
The following question will be answered through this article:
- The morality of gender? Are biological markers enough to justify the stark difference discovered?
- Instances of misuse and lapses in the current legal system
- What can be done to tackle this issue?
Morality of gender
The concept of gender bias came from the very roles that were discussed above, created for survival has shown its age. In an age where the beacon of liberty is clear and throughout, such an archaic principle cannot exist for it will break centuries of evolution. Naturalists will argue that the notion of gender came from the sheer biological differences that the genders have between each other, from the voice, shape, and structure of the body down to the primary functions of the body itself.
Socrates believed – “If we are to use women for the same things as we use men, we must also teach them the same things”.
However, it was not only him who believed that the gender division would be a paramount mistake for society itself. There was a notion during the early eras of mankind that the reason for survival used to justify differences in treatment of genders was to break. Humanity has attained a point in their evolution where they can transcend their primal instincts and become something more.
This thought did not stand the test of time, during the warring inquisition period of humanity, many sought religions as a means to derive hope and survival. This faith gave religion the ability to control the opinions of people. All religions in some way or the other profess a certain role for each gender. Can this be moral?
Taking a consequentialist argument, one might say that such roles are required to maximize the capacity to attain favoured outcomes. The emergence of feminist jurisprudence spoke otherwise, saying –
“The feminist concern with equality involves the claim that equality must be understood not simply as a formal concept that functions rhetorically and legally. Equality must be a substantive concept which can make changes in the power structure and the relative power positions of men and women generally”.
Closely tied with libertinism, the idea was that humans have and should be allowed to continue possessing the capacity to decide their place in the web of society. This is where we see our first issue: when considering society, is it okay for one person to decide what they want against what is required by society itself?
If we were to follow the principles of utilitarianism, we could derive two needs for the gender system. The utilitarian system derives its presence through maximum utilization and satisfaction delivered from the acts that are acted upon. One may say that the gender system is a culmination of actions that are an average of all activities enjoyed by respective people and therefore likely to continue due to past interaction and evolution. Another argument one may say, from the utilitarian side would be the concept of societal welfare and satisfaction as the collective and primary goal.
“Utilitarianism, a theory of morality, which advocates and dictates actions that foster happiness, pleasure and/or satisfaction whilst opposing any action that may cause unhappiness, harm or any sort of dissatisfaction.”
Jeremy Bentham, in his ‘Introduction to the Principles of Morals and Legislation, a 1789 publication, writes:
“Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do.”
This may sound right for some, as the needs of the many must outweigh the needs of the few. However, a certain section of libertarians believes that the concept of genders is where the line of society must be drawn. They believe that society must understand that the needs of the many have a defining boundary. That boundary exists when considering the purpose of one’s place in society. Dwelling heavily into the argument of choice.
Capturing the central idea of John Stuart Mill, “They (the utilitarian theory) reduce the subtleties of human life to a stark calculation of animal-like pleasures, with no concern for how these pleasures are produced.”
One can say that the need for genders, just for the sake of better administration by average assimilation is not only unfair but going against the principle of utilitarianism. That which focuses on the satisfaction of society which includes the members of the society itself.
Do biological markers justify differentiation?
Another important question we must ponder is the inclusion or exclusion of biological markers. Biological markers here can be defined as the stark biological differences that are possessed by individuals all over. This includes hormonal secretion rates to reproductive systems and any other biological differences that exist to define the differences between the genders.
It wouldn’t be fair to say that biological differences must never be acknowledged when constituting the law of the land. It would, therefore, only be moral if laws acknowledge the differences and adapt.
- A good example here would be the concept of maternity leave. No matter what the reader’s view is on pregnancy, what we must understand is that the parent is vulnerable to both external and internal threats, both physical and mental. Therefore, the law of maternity leave covered under the Maternity benefit act, 1961, having gone under the recent amendment, increased maternity leaves from 12 weeks to 26 weeks and paternal leave from 6 to 8 weeks.
Such laws, which seek to benefit human nature by flexing itself around biological markers, would be the moral way to go. However, that is not the case with Indian law. Yes, there are laws such as the prohibition of work for women during a certain period (Section 4 of the Maternity Benefits Act, 1961) but to which there are other laws that further divide the law between the genders.
- Laws such as Section 498A (recently amended), 125 and 406 from the Criminal Procedure Code are just the beginning. To look deeper into the issue, let’s take Section 498 A of the CrPC which reads –
498 A – “Husband or relative of the husband of a woman subjecting her to cruelty. —Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. For this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
The problem with this section isn’t in its protection of women but their immunization. In practice, this law has people who have lost entire livelihoods on a mere accusation by some women. In cases such as –
Saritha v. R. Ramachandran
The Court noted the reverse trend and requested a non-cognizable and bailable offence from the Law Commission and Parliament. However, it was the court’s requirement to condemn wrongdoing and to shield the victim from what happens once the victim becomes the abuser. Here is what remedy the husband will have. On this ground, the lady gets to divorce her husband and remarry or in the form of compensation may gain cash.
Anju v. Govt. of NCT of Delhi
“In appreciating the facts of the case, the Court noted that in the FIR, the wife of the Petitioner in one breath named all members of the family without any specific role being assigned to any of them. Thus, no details were provided as to when the recorded instances occurred, or any facts to substantiate or corroborate the allegations against relatives of the spouse. The Court also noted that the allegations against the respondents were fairly general. The plaintiff failed to mention a date, time, month, or year when she was subjected to beating them. In view of the aforementioned facts and circumstances of the case, the High Court of Bombay upheld the order of the Revisional Court and held that the Court had made no mistake. Apart from the general and omnibus allegations that roped in all relations, there is no recorded material to justify the framing of charges under Section 498A IPC.”
One may argue that there was internal coercion to present the ascension of facts, however, this can be far from the truth. This isn’t to say that such families do exist that beat the truth out of people; however, some families are ruthlessly punished for something as simple as having an argument or imagine having one. Like the lady justice, Indian law seems blind to such differences.
Another example, which is quoted very often is the law of rape and sexual assault, both in letter and application. Under Section 377 and other similar laws, there is an overbearing emphasis on the man being the predator and the woman, the victim. In understanding what constitutes rape, international law has evolved from viewing it just as penile-vaginal to penile-orifice and then to penetrative-orifice, all within a non-consensual context. By the latest legal definition, the physical violation with blunt objects undergone by Nirbhaya at the hands of her gang rapists would be classified as rape. Why does the Indian law in all its jurisprudence fail to see rape and other crimes of power as a gender-neutral issue? Feminists often quote history, saying that men of the past were abusive and harmful to women at the time, despite not defining a particular period. Truth be told, the concept of crimes of power, such as rape and sexual assault have often been committed by persons with power on those who do not. The crime itself was never fixed on gender but a sadistic need for domination, in a non-consensual way.
“The law must stay above the squabbles of the societal construct; it must be that path which leads all victims to justice despite their place or lack thereof in society itself.
As we spoke about earlier, the idea of gender equality is no longer a myth. Scandinavian countries for example have been able to achieve the most equal states in all of history. Other than that, countries like Bhutan, Kazakhstan, Kyrgyzstan, and South Korea have gender-neutral laws. We can conclude that it isn’t a myth but is India ready for gender equality and neutral laws? The answer is more complicated than one thinks for three reasons. One, India’s history with gender-related violence is a long way coming. With female babies being killed at birth and children being engaged at a very young age. The dark side of Indian history requires us to continue instilling some laws for the better protection of women in the country. Two, India in the majority cannot fathom a male victim in any crime of power. This mentality and social stigma that exists show men to always be the predator and women to be the victim, despite having seen various examples that show the crime to be gender-neutral. This dark side of Indian history mentioned in point one has forged an idea that only a man can be wrong while a woman is always honest and right when considering the crimes of power. The third reason is quite simple, many sections of society do not want gender-neutral laws. Despite the younger generation fighting for gender-neutral laws, there remains a section of society that wants such biased laws to exist. These laws are easy to take advantage of or are required to ensure a safety net for those that are still subject to the violence of the past. For reasons known or unknown, this section wants the laws to exist. Our legal system prides itself on never seeing an innocent person in prison, does this mean that our legal system is a product of internal hypocrisy? There is hope for the day when gender-neutral laws do come into force. That is when, the concept of gender equality will become a solid foundation under the law and then through the application, into society itself.
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