GENDER NEUTRAL LAWS - WHAT'S THE HARM?
In the thick of the #MeToo campaign in India and around the world, there have been many a revelations of sexual assault on men as well. Amidst this, the Supreme Court has rejected a PIL which has sought to make laws like sexual harassment, rape, outraging of modesty, Voyeurism, etc gender-neutral. This decision has attracted a lot of criticism and anger; and has also left our team at Anti-Voyeurism Forum disheartened and worried.
SCENARIO IN INDIA
In India, there has been a pattern of creating women-centric legislations which often exclude men from purview. This can be understood given Article 15 of the Indian Constitution (which gives the State powers to make special provisions for women) and because it is true that women are most often victims of such crimes. But, it is the responsibility of the State to ensure that every section of society is protected and even rare crimes are included in the penal laws. Another concern that arises is the plight of the transgender community and the intersex.
SUPREME COURTS ASSESSMENT
The reasoning given by the Supreme Court on rejecting the PIL is that 'these were affirmative provisions for the protection of women' and 'are a valid classification'. In fact, the SC even called it an 'imaginative petition'. This is quite surprising given that this is the same Court that has made progressive decisions in the cases of right to privacy, triple talaq, recognition of third genders, etc.
The Supreme Court has said that 'the Legislature would have acted as per what was the urgent requirement'. However, just because the crime rate of such crimes is low, that does not mean that there need not be available a remedy. And, the Legislature cannot always be relied upon given their political agenda and distorted focus.
CJI Mishra has said, "We are not saying that a woman cannot rape a man but these come under a different offence under IPC". The other offence the CJI talks about in this statement is Section 377 which is the only resort in case of the rape of an adult male and that Section too is very vague. Is Section 377 enough of a remedy for a man who has been raped? Also, there needs to be a clear distinction between coercive and consensual homosexual intercourse.
WOMEN WELFARE LEGISLATIONS ARE ESSENTIAL
However, we have to acknowledge the reality of society. Women are one of the most vulnerable groups in society. These women welfare legislations are, without doubt, essential and valuable in today's time and are a positive discrimination. Without them, crime against women would be even higher than it is today. Also, we agree that in most of the crimes committed under these legislations, women are mostly the victims and men are mostly the perpetrators. It is also argued that being in a more dominant position, the However, there are a small percentage of such crimes which occur with men and are committed by women as well. The victims in such cases have no legal remedy for that specific crime and the perpetrators get away without even a bit of struggle. The scandal involving Hardik Patel’s sex tape ahead of the Gujarat polls and Swami Nithyananda clearly indicates that crimes like Voyeurism can affect anyone irrespective of their gender or status.
THE TRANSGENDER COMMUNITY
India has always been home to the transgender community, which can be seen from the historical and mythological evidence present. However, they are barely recognized by the Indian law. The word ‘transgender’ means a person whose sense of personal identity and gender does not correspond with their birth sex. They include hijras, kothis and trans-sexuals. They also include people who have undergone sex change surgeries. The sexual and physical crimes against transgender in India are very high. The Peoples’ Union for Civil Liberties – Karnataka (PUCL-K) studied the human rights violations against transgenders in Bangalore and commented as follows: “Sexual Violence is a constant, pervasive, theme in all narratives that we have collected in our report. Along with subjection to physical violence such as beating and threats of disfigurement with acid bulbs, the sexuality of the hijra also becomes a target of prurient curiosity, at the least, which leads to brutal violence, at the most. As the narratives indicate, the police constantly degrade hijras by asking them sexual questions, feel up their breasts, strip them, and in some cases rape them. With or without the element of physical violence, such actions constitute a violation of the integrity and privacy of the very sexual being of the person.” They are also routinely harassed under Section 377 of the IPC.
Gender neutral laws don’t just allow the inclusion of men but also the transgenders. This will ensure that the rights of the transgenders are also protected.
Other than the legislations mentioned in the PIL, legislations like Adultery, Domestic Violence, Presumption of Dowry death, Maternity Benefits Act, etc are also gender-biased.
In most of these offences, it is presumed that the accused would always be a man and the victim would always be a woman. In contradiction to this assumption, a recent study found that out of the 222 men who were studied in India, 16.1% had been coerced into having sex. It is becoming increasingly clear that the rate of such crimes against men is also on the rise. Also, given the patriarchal society and the ingrained need for masculinity in every man, the reporting of such crimes is also low. Their manhood is questioned, they are considered gay, their families and wives leave them and they are taken lightly by society. The absence of a remedy only adds to the low reporting of such crimes against men.
Also, there is a growing awareness that such crimes like Rape, Sexual Harassment, Outraging of modesty, etc are not only acts of lust and desire, but also are committed to exert dominance and power of one class, community, gender, etc over the other. They are committed to bring humiliation to the victim and prove superiority. Given these findings, there is no reason to restrict the applicability of such laws to women. The Law Commission has also recommended that the offence under Section 375 of the IPC i.e Rape should be made gender neutral, but no provision has been incorporated.
Many countries such as Canada, Australia, Finland, England, the Republic of Ireland, Wales and a large majority of the United States have adopted gender neutral laws.
THE RIGHT TO EQUALITY
Under Article 14 of the Constitution every person deserves equality before law. Therefore, men must be entitled to the same rights of women. Even though of occurrence of such crimes with men are at a lower rate, they cannot be denied right to equality.
CRUX OF THE MATTER
The essence of the matter is that, the PIL filed was not for striking down such important and valuable legislations but the PIL was to make these essential legislations more inclusive of all genders. Because, in the end, gender neutral laws do not make female victims more vulnerable but just acknowledges the existence of male victimization. Moreover, there is no possible adverse effect of making such laws gender neutral. One might say that there may be misuse of such laws by men, but is not that the same for most laws? Also, has there never been misuse of women welfare legislations by women? Fear of misuse should never prevent the rolling out of necessary legislations. Instead measures preventing misuse should be added. The possibilities of misuse of the Voyeurism law are quite low.
Even by making such legislations gender neutral, they will still remain as women welfare legislations as the maximum benefit under it will go to women given the crime rate against them. Legislations like Section 25 and 24 of the Hindu Marriage Act, 1955 (Maintenance and Permanent Alimony), Section 326 A and 326 B (Acid Attack and Attempt), etc are perfect examples where although the Sections are gender neutral, they are still women-centric.
And we can conclude that while ensuring equal protection of laws by making women welfare legislations, equality before law should not be neglected. Safest place for women in India - Google