GENDER NEUTRAL LAWS

THIS ARTICLE WAS WRITTEN BY MANASVITA TEJSI, A STUDENT OF RAJIV GANDHI NATIONAL UNIVERSITY OF LAW.

INTRODUCTION

From childhood we have been instilled with perspective on how to view the world and people. This introduces gender bias, stereotypes and stigma created in a society. They seep from well rooted traditions and culture however, it is important to have an unprejudiced view where legal matters are concerned; if the legislature and the judiciary themselves will hold biases on the basis of gender, this would cause a blatant miscarriage of justice.

LAWS INCONGRUOS WITH GENDER NEUTRALITY

There are various sections in the Indian Penal Code, 1860 as well as various other acts where gender neutrality is in absentia. The definition of ‘gender’[1] in IPC itself is flawed; it introduces just two genders, not keeping up with modern times; the third gender is not included in the definition. It calls for the derivatives of the pronoun ‘he, implying the pronouns that will be taken as gender will be ‘he’ and ‘she’. Third genders do not necessarily consider either of the pronoun and may opt for a separate pronoun altogether.

Section 354A[2], 354B[3], 354C[4] and 354D[5], contains punishment for ‘a man’ who commits the crime of sexual harassment; it includes stalking and voyeurism. Any man who makes any uninvited sexual advances or comments can be criminally charged. It also punishes a man who compels a woman to render naked against her wishes. Voyeurism, Section 354C, is when a person is being watched when they do not expect it; mostly in their private moments. According to this law, only a man is capable of stalking and outraging a woman’s modesty. A woman, on the other hand, is not capable of sexual harassment. Transgenders do not necessarily identify themselves as male or female and thus, third gender has been categorized for them; the law fails to mention them. The laws themselves form boundaries and can be considered as the basis for these underreported cases; cases not being reported are directly proportional to no existence of laws. The heinous crime of rape under Section 375[6] in the Indian Penal Code declares that all the rapists are men as the law is only for women; this can be interpreted as the law uses the pronoun ‘her’ and the gender of a woman as a victim and that of man as the perpetrator. This section also uses the word ‘penile’ and ‘penetration’ which causes the law to be biased. The male rape cases were booked under sodomy in Section 377 (now decriminalized). Now that this section has been decriminalized due to its nature of not allowing consensual homosexual relationship, which section can be considered as a shelter for male rape cases. The National Crime Records Bureau (NCRB) records crimes and provides statistics; however, there can be no statistics found for rape of men or transgender.[7] This not only reflects the harsh ground reality but it also demotivates anyone from reporting a case in the future. Similarly, Section 498A[8] contains provision for sexual harassment, stalking and voyeurism. There is no mention of harassment of the husband by his spouse or spousal relatives. The numbers may be low but that does not nullify the crime. Most of these cases do not get reported. Third gender is not included in the definition so the they do not even come near this ambit. Albeit these biases have been deeply rooted in people’s mind but only a law can bring that change. People do not accept what they do not see; unless they see cases where victims may be different than women, being reported, they will believe.

The Information Technology Act, 2000[9] uses words like ‘his’ or ‘her’; there is no inclusion of third gender in cyberstalking or cyber bullying. The Protection of Women from Domestic Violence Act, 2005[10] is another prime example of discord with gender neutral laws. It is an act solely dedicated to serving the purpose of protecting women and not a person. It provides grounds of divorce and compensation to the women, if the man is found to be physically, mentally and sexually assaulting her. There is also no mention of violence on the third gender. This creates a veil between laws and equality.

THE CRIMINAL LAW (AMENDMENT) BILL, 2019

Senior Advocate KTS Tulsi, introduced a bill in the Parliament, in 2019 to make sexual offences gender neutral. This bill strives to achieve gender neutrality in various sections of Indian Penal Code, 1860, Code of Criminal Procedure, 1973 and Indian Evidence Act, 1872. It does not mention alterations to any other statutes. The bill also seeks to identify third gender and their incorporation in laws.[11] There have been no changes in the bill that KTS Tulsi introduced. People have argued that this might rein in a plethora of pseudo cases; this is inevitable. However, establishment of more speedy fastrack courts might be the solution to this problem. One can always find ways to simply turn their back on something once a problem arises or they can solve it to decipher more deep-rooted problems of the society.

CONCLUSION

With changing times, there can be a possibility of introduction and inclusion of several other genders. The law has to create a safe space for them and the people have to keep an open mind for any possibilities. Article 14 in its veracious form interprets equality; this means no bias of any kind. The absence of gender-neutral laws may question the justification for Article 14. Stigma has led individuals to believe that often females can only be the victims. This is true to some extent, but to believe that this might only be the case, is to turn a blind eye towards reality. We, as a society, are developing mentally and socially; it is time to realize that stereotypes should be chucked out of the window and a realization that anyone can be a victim or a perpetrator.

[1] The Indian Penal Code, 1860, S. 8

[2] The Indian Penal Code, 1860, S. 354A

[3] The Indian Penal Code, 1860, S. 354B

[4] The Indian Penal Code, 1860, S. 354C

[5] The Indian Penal Code, 1860, S. 354C

[6] The Indian Penal Code, 1860, S. 375

[7] National Crime Records Bureau, India, https://ncrb.gov.in/crime-in-india-table-addtional-table-and-chapter-contents?page=92

[8] The Indian Penal Code, 1860, S. 498A

[9] The Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India)

[10] Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India)

[11] The Criminal Law (Amendment) Bill, 2019, https://drive.google.com/file/d/1MuiStDb6gMXfubaFI0QYcdO4fpUqnlYN/view