Gender Neutrality in India

    I am what I am, so take me as I am”- Johann Wolfgang von Goethe. Gender Neutral laws convey that in the eyes of law, all the genders existing should be treated equally, be it by stating orally or in terms of making laws. People often mistakenly use the Gender-Specific and Gender-Neutral laws interchangeably while it is not so the case. There are ample instances where we can see that the laws are Gender Neutral like that of the POCSO Act, 2012 where ‘any person before the age of 18 years’ is mentioned without defining or stating either gender to be a prey or a victim of a crime. Another significant example would be Section 377 which entails that any voluntarily carnal with man, woman or animal would be an unnatural offence. Section 377 is also a Gender-Neutral Law within which any male can who has faced any kind of abuse or harassment can recourse under this.

    In order to understand the concept in-depth, it is important to know the various law reforms which led to such drastic changes. The CrPC was amended in 1983 to include the in-camera trial in rape cases. Considering Gender Neutral Laws various offences like Stalking, Voyeurism and sexual harassment were added to IPC but soon were deleted and were placed in The Criminal Law Act, 2013. Henceforth, all these offences are now considered to be Gender Specific.

    History

    The 172nd  Report of Law Commission of India in 2002 entailed that while reforming the rape relating laws in India those laws should also be gender neutral[1]. Even after battling the way in the mind of administration and Government of India decades ago we are still facing analogous issues at an individual level. Rape is used as a weapon against women which if once used will force the victim to live their life with fear, public humiliation, self-doubt and various other societal factors. Various heinous sexual crimes against small girls all over the country forced the court to go to extensive length to define what actually would amount to ‘rape’ or ‘mere violation of modesty’; whether the rape of a 6-month-old girl would be a violation of her modesty. Does a 6-month-old have the modesty to lose? Whether women are born with it? Do they carry it with them all the time be it in their sleep or awake? Whist brainstorming the plausible causes the court rendered the two-myth abreast with rape; the first one being that it happens in outskirt places or in dark alleys where no sane women would go in night alone and second that it happens outside the domain of the loving house. But soon with the help of media coverage, we saw the vulgarity of patriarchal driven society where girls were brutally raped by their own uncles, father, cousins and elderly male members. When the debate ended and the bill came into being even then there were several terminologies which indicated women as the victim of crime.

    A lot of feminist leaders like Geetanjali Gangoli campaign on women rights and violence against them[2]. Sheela Barse being the first activist to raise her voice against cruelty against minor children both male and female at various locations like children homes and favouring in adopting a male child.

    What gender-neutral laws aims to achieve?

    The percentage and increasing rates of women getting harassed and abused by men are sickling high. Putting an end to Rape and other forms of aggravated abuse practices have been a pivotal scenario for many feminist activist and scholars, similarly, law and other administrative agency of a country try to put their best of efforts to curb such practices. Numerous countries have come up with different ways to educate and define rape to people, the treatments offered by the state and the role of feminist leaders who have gone out of the way to implement the policies and need of the rape victims[3].

    Humans are the gregarious being who loves to be loved and accepted by their family and society. Their real purpose behind attaining this acceptance is vindicated by the fact that it’s the lone way of acquiring a mark of recognition and respect. Contrarily, a person who doesn’t covet to obey these societal norms is usually ousted by his own community. India is a country full of cultures, norms and values which is of great importance to some people but with evolution, these values and norms also evolved and a key role was played by the legislature who enacted the laws of the times. Still, some people fail to recognise it and are struck with those ideals and anything did otherwise is an offence in their eyes be it being homosexual. No one can escape from their individuality; they must surrender themselves to their true self.

    In 2017, when the Supreme Court promulgated a historical decision,  proclaiming the right to privacy as a fundamental right placed itself in contrast to section 377. Eventually, 6th September, 2018 has been marked as a special day in the history of the Indian justice system when the five-judge bench in the case of Navtej Singh Johar and Ors. V. Union of India[4] unanimously decriminalized the homosexuality between the two consenting adults. However, the verdict clarified that non-consensual sex and sex done with animals will be still viewed as a criminal offence under section 377. The comprehending point here would be to opine neutrally and become compassionate towards the LGBTQ community. It’s imperative to clear out all suspicions and biased opinions about them which exasperate them as they too have the heart to feel awful about themselves. They need our love and support instead of viciousness.

    https://legalreadings.com/sexual-offences-against-transgenders/

    Are men a victim of rape laws in India?

    There seems to be no doubt in the fact that India is a patriarchal driven society where the male members are considered to be smart, worthy, strong and effectively capable of taking all the prime decisions of the family. But the question still remains the same whether the ‘strongmen’ are always strong enough to stand up for themselves; are they never harassed or abused? Distinguished leaders of the world at different times had the same opinion about male rape that ‘Women raping men is impossible’ and there has been no such strong rebuttal to this theory. If a male is not raped then why arises a need to rethink rape laws, w.r.t men? Males are not raped but are abused just like women sometimes by their relatives, children in home, schools or colleges. Men never raise questions or concerns against these abuses and are just silent victims of such behaviour but in a plethora of cases, they are at receiving end of these sexual abuses [5]. The court in various cases have clarified that male victims of assault to be treated in the same manner as any women victim and if any women have sexually assaulted someone then she shall be treated as any other conventional rapist.

    The rape laws are seen to be Gender Specific in India. These laws give full leverage to women who have been assaulted or raped and help them in their upliftment but in that process, some women misuse the guaranteed right entrusted by the state authorities and the Constitution of India. Such security and the pre-decided notion of women to be a victim of a crime have opened the floodgates to lodge false complaints and take their long-rooted revenge. Rape is a heinous offence and hence take years and years in the court before the judgment comes; till that time both men and women are seen with shameful eyes of the society who only shows and feel pity for them.

    Norms at workplace

    Women have somehow found their place in the working sector by now; even then harassment at the workplace and eliminating a hostile environment for the employees seems to be a constant hustle for the administration to follow and tackle. It is no news that women are subjected to such hostile environments and are threatened to get fired from the job if they do anything otherwise or talk about it to someone. It is the result of such a threat and inappropriate work environment that the POSH Act came into being in 2013. It not only ensures that the women employees are not harassed at the workplace but even due to such safety and remedies available at your disposal many women are encouraged to work and lead their way out in the world.

    With new advancement, some mishap happens as well. Generally, women are taken as an easy target at the workplace due to an ample of reasons. Some see their minority and others take them as helpless and treat them as guinea pigs. Somehow there are people who not only harass women but even men and are commonly called as Equal Opportunity Harassers[6]. Courts in these matters have centred their attention on the external factors or indicators that display the manifestation of the harassment like the terminology, number of times such an event happened and the nature of such episode.

    It focuses on the premise that the external factors fail to entail implicit factors such as the norms, value and society made hierarchy which is the bedrock of forming the person’s image way before the relationship between employer and employee is formed.

    Conclusion

    Flavia Agnes said that in a country like India where the ratio of gender parity is huge; the deep-rooted patriarchy forces people to hate women and at these times if Gender Neutrality is established it would only increase the problem giving men a motive to take their sheer vengeance. Nevertheless, even after viewing the downside of such laws, it would still be imperative to implement the laws for the better good. Gender Neutral laws would not help the victims or the individual involved but also the law and administrative body because when the biasness ends, they will see the world as one and only the offender of the crime will be behind the bars.

    References

    [1] Flavia Agnes, “ Law, Ideology and Female Sexuality: Gender Neutrality in Rape Laws” 37 Economic and Political Weekly (2002).

    [2] Geetanjali Gangoli, India Feminism: Law, Patriarchies and Violence in India (Routledge, 2016).

    [3] Clare Mcglynn and Vanessa E Munro, Rethinking Rape Laws: International and Comparative Perspective 347 (Routledge, London, 2010).

    [4] AIR 2018 SC 4321.

    [5] Sanjay Deshpande, “Sociocultural and Legal Aspects of Violence Against Men” 1 Journal of Psychosexual Health (2019).

    [6] Richard L Pate, “The equal opportunity harasser, sexual harassment, gender-neutral words, and Ludwig Wittgenstein” 17 International Journal of Discrimination and the Law 25 (2017).


    BY PRIYANKA PANHOTRA | NATIONAL LAW UNIVERSITY, ODISHA

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