Neutrality Of Gender Laws In India: An Analysis
This article on “Neutrality of Gender Laws in India: An Analysis” by Vidhi Bimrecha, Second Year Law student from Amity University, Kolkata, becomes important because gender equality affects every member of the community so the matter of social difference is broadening again with significance associated with repercussions having a comprehensive and infinite canvas. Introduction The neutrality of gender… Read More »
This article on “Neutrality of Gender Laws in India: An Analysis” by Vidhi Bimrecha, Second Year Law student from Amity University, Kolkata, becomes important because gender equality affects every member of the community so the matter of social difference is broadening again with significance associated with repercussions having a comprehensive and infinite canvas.
Introduction
The neutrality of gender laws is one of the foremost aims that this article aims to target. Gender inequality in India applies to health, employment, social and political variations between males and females in India. Numerous international indices of inequality rate India differently on each of these variables, and on a weighted scale, and these measures are divisive.
Gender disparities and their social roots influence India’s sex magnitude relation, women’s health over their period, academic performance, and economic surroundings. Gender discrimination in India may be a significant issue that affects males and females equally.
Gender difference has affected many dimensions of women’s lives from job growth and advancement in psychological state issues. Though legislation in India on rape, dowry, and criminal conversation has unbroken women’s safety at priority, vast discrimination seems to get worse and moving the lives of men nowadays.
Every citizen of India has additionally been granted basic rights to safeguard their interest within the community towards any aggression brought into force by the judiciary regarding some restrictions. [1]
Unnao rape case shows the fact of equal rights to girls enshrined within the Indian constitution. The girl died when suffering severe burn injuries that were caused because of heart assault thanks to testimony against the defendant.
Rape and sexual allegation cases are in limelight since Nirbhaya case. Six men raped Nirbhaya in the Indian capital and killed her savagely. That led to very large protests across the country and prompted the government to line up J.S. Verma Committee[2] to form suggestions in rape law.
The Union Government got wind of the Nirbhaya Fund for meeting expenditure to reinforce the protection of girls. However, on the contrary, the terrible gang rape and assassination of a girl vet in Telangana and similar incidents in Rajasthan and states demonstrate that females are vulnerable and afraid presently as they were on the eve of the “Nirbhaya Gang Rape”[3] case.
But now, justice was finally given to Nirbhaya after seven years, finally, the four convicts were executed to death[4]. Currently, India has created strict laws like modification in POSCO Act, 2012 just like the corporal punishment is given to convict of rape of minor or kid below twelve years archaic. Even the government is planning to set up fast track courts to deal with such cases within 6 months.
Similarly, the “Men’s Rights Movement” in India has begun to safeguard men from undue harassment and mental torture. They are claiming from gender-neutral legislation as most of the laws in India are favouring girls. Men committed suicide in the Indian capital 2016 and his parents reputed that he did because of spare mental torture and harassment by his domestic partner.
Finally, the case was registered under Section 302 and 34. There’s a demand of amendments in anti-dowry legislation i.e. Section 498-A as most of the laws are inflicting humiliation to men and in-laws.[5]
“Lesbian, gay, bisexual, transgender and queer (LGBTQ)” individuals in India suffer legal and social difficulties that do not seem to be two-faced by non- persons. The state has abolished the colonial-era statutes that expressly implemented against homosexual sex and sexual identities.
However different substantive provisions have not been given for, together with equity or couple. Since 2014 within the celebrated NALSA case, the highest Court allowed them to register because they are the third gender of the country.[6] Similarly, Navtej Singh Johar case repealed colonial-era Section 377 and declared it as unconstitutional.[7]
In this article, we are aiming at discussing the subject neutrally by discussing the subject in lightweight of rights of all gender together with transgender rights.
Analysis of Gender Laws In India- Are They Neutral or Biased?[8]
Men’s Right in India
India is a nation with varied customs, non-secular communities and a history that goes back to centuries. India’s constitution has been seen as a central component for social growth with the democratic principle of equality.
India’s sustained political freedoms are exceptional among the developing countries of the world; however, given socio-economic developments, there’s new misery, non-secular and social class-related brutality, different social prejudices still widespread within the region.
Women in India are safeguarded by the various statutes in India and that they will file complaints against anyone for the infringement of their rights. Despite having equal fundamental rights given to men and, the rights of men don’t seem to be enunciated as compared to girls.
In Part 3 of the Indian Constitution, men will avail their fundamental rights throughout India despite their faith, race, gender, place of birth. Most of those rights guarantee liberty to men so that they will live without coercion and harassment.
The need for gender-neutral laws is in high demand within the rape legislation as from the start girls are solely thought of because the victim could also be because of patriarchate rife in Indian society. Even because of the increase of girl’s empowerment and feminism, the construct of gender neutrality laws was hindered.
Most of the provisions of IPC that states regarding offence against girls touch men solely as a criminal. It’s right that from the Tukaram case to Nirbhaya case that men were the sole culprit however, the Central Government ought to settle for the JS Verma committee suggestion for creating some laws gender-neutral however that was additionally rejected.
Now the situation is modified, several PIL(s) are filed in varied High Court(s) and Apex Court for creating rape laws to be gender-neutral.
In 2017, Sanjiv Kumar had questioned the lawfulness of existing rape laws that solely consider men to be the culprit. It absolutely was mentioned that currently the situation is modified and is requisite from the society to suppose “beyond the male-on-female paradigm”.
Centre in its application submitted that the laws associated with rape must not be altered as some sections are requisite to stay a check on the rising crime against girls. Equally, Apex Court discharged the PIL by Rishi Malhotra wherever PIL mentioned for creating rape laws to be created gender-neutral as there are not any laws to safeguard males from molestation. The case was Rishi Malhotra v. Union of India.[9]
The Law Commission suggested creating laws to be gender neutral by subbing the word “rape” with “sexual assault”. The Union Government united to form legislation to be gender-neutral after the Nirbhaya incident. Justice Verma in its report advised victimisation “person” rather than “women” to hide all types of sexual violence.
However legal code (Amendment) Act, 2013 fixed up to the gender-specific definition when criticism from the feminist teams came because of rife patriarchate gift within the society.[10]
Constitutional Provisions for Women[11]
Our Indian Constitution not solely focuses to grant equal rights to girls but also focuses to empower them in society, so they don’t face any type of discrimination financially, economically and politically. Despite the fact that some constitutional provisions like Articles 14, 15, 16, 39, 42 of the Indian Constitution.
These Articles give a construct of gender justice like equality before the law or equal protection of the law; no discrimination on the grounds of sex, race, religion, caste, dominion or place of birth, and civil rights to each citizen of India. There are a unit of different articles additionally that particularly promote the concept of girl’s management within 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.
Legal Provisions for Women[12]
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 do not 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 crimes 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”[13]. 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
Some of the Important Initiatives for Women by the Indian Government
- National Policy for Empowerment Of Women, 2001:[14] 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.
- 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.
- Reservation for Women in Local Self-Government: The Parliament passed the 73rd Constitutional Amendment in the year 1992[15] which made sure that women get one-third of the total number of seats in local offices whether in the city or village.”
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[16] the constitutionality of the “Indian Foreign Service Rules of 1961” was questioned.
The main issue of this case was that a woman employee must get written permission from the government before her marriage, and she must 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.
Another landmark judgment was given by the Supreme Court in the case of Air India v. Nargesh Mirza[17] 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[18].
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[19] 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 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 judgment given by the Top Court in 2018 in the case of Navtej Singh Johar v. Union of India[20] now, they can have 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[21]: 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.
- The Rights of Transgender Person’s Bill, 2015[22]: A Private member’s bill was passed by the Upper House regarding the right of a transgender person which defines transgender as a psychosomatic individual and stating about reservations.
- The Transgender Persons (Protection of Rights) Bill, 2016[23]: The government opposed Rajya Sabha’s bill and introduced the 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 judgment given by the Top Court in the case of National Legal Services Authority (NALSA) v. Union of India[24]. Their legal identity was given to them in this case.
- Transgender Persons (Protection of Rights) Bill, 2017[25]: The bill was introduced to tackle social issues faced by transgender and how to empower them in society.
We have mentioned in our article that though the constitution of India has granted equal rights to the citizens of the country. But there are some legislations like rape laws that are granting more protection to women due to the presence of patriarchy in society. But now the time has changed and there is a requirement on the part of lawmakers to alter these laws to make them gender-neutral.
Conclusion
Most of the laws in India are indeed for both the male and female and now it is 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 anymore. There is no reason to suspect the pervasiveness of sexual assault outside the established framework[26].
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] Carol Vlassoff, Gender Differences in Determinants and Consequences of Health and Illness, 25 Journal of Health, Population, and Nutrition 47–61 (2007)
[2] Justice Verma Committee Report Summary | PRSIndia, Available Here
[3] Nirbhaya case: Four Indian men executed for 2012 Delhi bus rape and murder- BBC News, Available Here
[4] Five years after the gang rape and murder of Jyoti Singh, what has changed for women in India? | Society | The Guardian, Available Here
[5] The Roots of Gender Inequality in India by D. Amutha :: SSRN, Available Here
[6] Man commits suicide, wife files dowry harassment case against him- Mail Today News, Available Here
[7] Claire Melamed, Gender is just one of many inequalities that generate poverty and exclusion | Claire Melamed, The Guardian, Mar. 9, 2012, Available Here
[8] Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law, Available Here
[9] Rishi Malhotra v. Union of India Writ Petition(s)(Criminal) No(s).7/2018
[10] 6 February 1918: Women get the vote for the first time- CBBC Newsround, Available Here
[11]Constitutional&Legal_Rights.pdf, Available Here
[12] nationalwomenpolicy.pdf, Available Here
[13] Important Constitutional and Legal Provisions For Women In India- Women’s Rights, Available Here
[14] ncwact.pdf, Available Here
[15] Panchayati Raj, 73rd Constitutional Amendment and Women on JSTOR, Available Here
[16] C.B. Muthamma v. Union of India AIR 1868 (1979)
[17] Air India v. Nargesh Mirza AIR 1829 (1981).
[18] Pratibha Ranu v. Suraj Kumar AIR 628 (1985)
[19] Vishaka and Ors. v. State of Rajasthan SC 3011 (1997).
[20] Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice W. P. (Crl.) No. 76 of 2016
[21] transgender-E.pdf, Available Here
[22] Draft Rights of Transgender Persons Bill 2015.pdf, Available Here
[23] The Transgender Persons (Protection of Rights) Bill, 2016 | PRSIndia, Available Here
[24] National Legal Services Authority v. Union of India WRIT PETITION (CIVIL) NO.604 OF 2013.
[25] Transgender-Persons-Protection-Bill-2017-.pdf, Available Here
[26] Delhi HC issues notice to Centre in PIL seeking gender-neutral IPC rape, Available Here