Gender Neutrality in India: Rights versus Reality

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This article was written by Sanyanti Chatterjee, a student of HNLU.

The topic of Gender Neutrality in India has become a hot topic of conversation in recent times. There have been various debates raging over the relevance of such a concept in our country and the legal complexities associated with implementing it, especially in the light of the majority of developed countries recognizing gender neutral laws which provide for relief and remedy where the victims and perpetrators many be of any gender or sexual orientation.[1]

There are three sides to this issue which have been focused on individually with a legal lens. The first side is from the perspective of women in India. Women have always been a disadvantaged group who have been exploited from time immemorial, mostly for power. Most states nowadays have taken measures to uplift the condition of women, but is it at the cost of the other two groups?

The second side here is the perspective of men. The topic of the essay is Gender Neutrality, not women empowerment. Therefore, the spotlight is on laws that need to be made gender neutral, not laws that favour one gender. Men have always been seen as perpetrators rather than victims, especially in crimes of sexual nature. But in recent times it has come to notice that even men are victims and face a greater stigma to admit to it.

The third and the most disadvantaged are the transgender and other members of the LGBT community. Even though their existence has been recognized throughout history, their rights rarely have been. Gender biased laws affect them the most as crimes against them can easily be classified into the category of ‘unnatural sex’ and set aside. Offenses against them aren’t even covered under the ambit of Section 377 of the IPC. It is only gender neutral laws that will give recognition to their rights and provide remedy.

Women

The first and foremost issue of concern here is the effect of laws on the female population of the country. In this context let’s do a review of the rights enshrined in the Constitution of India, which guarantees equality as ‘Fundamental Rights’ in Articles 14, 15 and 16 under Part III. Article 14 guarantees equality before law and the equal protection of laws. Article 15 prohibits discrimination ‘only’ on the basis of religion, race, caste, sex, place of birth, or any of them. Article 15 also allows for special provisions to be made for women, children, socially and educationally backward classes of citizens as well as the Schedule Castes and the Scheduled Tribes (SCs and STs) – such special provisions shall not be considered discriminatory. Article 16 provides for equality of opportunity in matters of public employment. It also allows the state to make reservations in favour of the SC, ST and Other Backward Classes. While the Constitution does not specifically mention reservation for women, the Constitutional (74^thAmendment) Act, 1992, brought in provisions mandating one-third reservations for women in local governance bodies. These guarantees apply to state and public institutions. ^[2] The only provision that binds both the public and the private sector is Article 17 which outlaws untouchability and forbids its practice in any form.

Part IV of the Indian Constitution enlists socio-economic and cultural rights to women too under the title of ‘Directive Principles of State Policies’ (DPSP). While the DPSP, unlike the fundamental rights, are not enforceable, these rights are meant to guide the state while legislating and policy making. The Supreme Court and the High Courts under Article 32 and 226 respectively, have the power to enforce constitutional guarantees of fundamental rights. This Right to Constitutional Remedies is itself a fundamental right. For the enforcement of fundamental rights, the Supreme Court has expanded the locus standi which has resulted in ‘public interest litigation’ on behalf of socially deprived categories, which provides a lot of scope to women for their improvement.[3]

Against this scenario, it would appear that women are guaranteed equality, equal protection of laws, equality of status and opportunity, thus redeeming the preambulatory promise of Justice: social, economic and political. However, the mainstream Indian society continues to fall short in the realization of full equality for the marginalized groups, particularly women. According to 2001 census report, the sex ratio stands at 933 females per 1000 males.[4] Out of the total population, 120 million are women who live in abject poverty. The maternal mortality rate in rural areas is among the highest in the world. India accounts for 19% of all live births and 27% of all maternal deaths. The post neonatal mortality rate (number of deaths of children age 1-11 months per 1000 live births) for females is 21, compared with only 15 for boys.[5] The total female labour force participation rate is estimated to be only 28% in 2008, and this data does not take into account the hours spent by women on household activities.[6] In urban areas, female labour force participation rate is estimated to be at only 7.8% in 2005-06.[7] Only 36% of the female populations in the age group 15-64 years are participating in the labour force.[8] These statistics present a dismal picture of women’s lives across both, public as well as private spheres. Even when women engage in paid work, their daily income is only 53 paisa per rupee earned by men in rural areas and 68 paisa in urban areas. Women’s economic vulnerability is compounded by their social vulnerability.[9]

There is no comprehensive anti-discrimination code in India although there are laws that address specific aspects related to equality. For instance, laws like the Maternity Benefits Act (1961), Equal Remuneration Act (1976) and the National Rural Employment Guarantee Act (2005) attempt to address the existent systemic discrimination towards women in employment. Based on the guarantee of equality, laws have been enacted to address violence against women under civil and criminal laws. The Protection of Domestic Violence Act (2005) is an example of the civil law to address violence within the home. On the other hand, the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (1989) is an example of criminal law to counter acts of violence against SC/ST women. In the absence of an anti-discrimination code, there is no comprehensive statutory definition of discrimination that takes into account different manifestations of discrimination and its impact.

Other than mechanisms provided under these laws, India has instituted statutory commissions to protect human rights such as the National Human Rights Commission and the National Commission for Women. These commissions have been vested with the function of inter alia monitoring and reviewing state action and making recommendations for better enforcement of human rights and women’s rights. However, they have their limitations. Their recommendations are not binding upon the government and they have no power to redress individual grievances and grant relief.[10]

From this situation, there are two problems which can be identified- firstly the laws aren’t enough if they are results of half-baked efforts to please the agitated public or they become actively discriminatory due to misinterpretations, and secondly a very progressive law isn’t useful because of ignorance and faulty execution, which is where the rights versus reality debate comes in. In some cases archaic colonial rules haven’t yet been amended and that creates a barrier in the improvement of the society.[11]

One example of an infamous law is the Muslim Women Protection of Rights on Divorce Act (1986) which went against its very name and left divorced Muslim women vulnerable to the whims and fancies of their ex-husbands with regard to maintenance. Earlier, a Muslim man was socially obliged to provide for his divorced wife until she remarried. Now, he was legally obliged to maintain her for only three months, after which she had to look to her relatives. In fact, the entire Shah Bano case (1980) was made into about the religious differences between Hindus and Muslims rather than the actual issue of women rights. Instead of seeing the Supreme Court decision as a boost for feminism, the Government gave into the demands of Fundamentalists and enacted the said law nullifying the decision. This is a first-hand example of how public pressure can also lead to a regressive direction, which is something that must be taken note of in this era of media trials and public pressures.[12] However, it is heartening to note that the Supreme Court of India in August, 2017, banned the archaic and anti-Islamic practice of triple talaq, granting equality to Muslim women and empowering them.

Before moving on to other examples, allow me to write about my concept of feminism as an independent adult woman. Feminism arose from a long line of suppressed women who wanted to be on an equal foothold with men. Especially during the world wars, women entered the workforce in large numbers to fill in the shoes of men who had been called away or even killed in wars. It was a given fact that they were paid much less and had insane working hours, on top of the added responsibility of being the sole earning member of their families. But the real discrimination came to notice after the war when inexperienced men were inducted into the workforce at higher wages than these experienced women, or sometimes even at the cost of their jobs. It was humiliating for these women to accept being fired just for the reason that she was a woman. Moreover they had no one to protect their rights as there were no women in the parliaments, and very few men sympathised with them. Historically, the right to vote had always been withheld from women on the pretext that only individuals with property or income should be allowed to vote. Now, women had also become earning members and began demanding voting rights and the right to stand in elections, so that their interests were also represented.

From this, it is clear that these women wanted to change society’s perception of women as weak liabilities who had to live on the charity of men. They also wanted to be seen as independent and contributing members of the society, and wanted the State and its laws to protect their rights.

On top of this, women have historically been the victims of crimes especially of sexual nature. They are perceived to be physically weak and incapable of protecting themselves from predatory men. Especially in the Indian society which has mostly been patriarchal, women had hardly any right. It was a popular saying that a woman is dependent on her father as a child, her husband as an adult and her son in old age. None stopped to consider the situation of the woman if any of these relatives died or refused to maintain her, nor the fact that she might want to support herself. In this perspective, any law protecting the rights of women in the right sense comes as a welcome step. Since the British period, a variety of laws like Special Marriage Act (1954), Dowry Prohibition Act (1961), Equal Remuneration Act (1976), Prohibition of Child Marriage Act, 2006, Indecent Representation of Women (Prohibition) Act, 1986, Hindu Succession Act, 1956 with amendment in 2005, Maternity Benefit Act, 1961 (Amended in 1995), Protection of Women from Domestic Violence Act, 2005 among others have been passed keeping in mind the protection of the rights of women.[13]

But there are legal complexities and loopholes which cause more harm than good. The case in hand is the Medical Termination of Pregnancy Act, 1971. This act was enacted in good faith to prevent female foeticide and also to protect women in case the foetus was harmful to her of wouldn’t survive after birth due to some defect. But the spirit of this act has been defeated in cases of rape victims and contraception failures of pregnant unmarried women. Often victims of sexual assault get tangled up in bureaucratic knots and the gestation period of 20 weeks is long over before she can get an abortion as in the case of a woman from Jashpur, Chhattisgarh.[14]

It is also important to note that lack of education about the rights of women lead to two major problems- women can’t seek remedy because they don’t know their rights and the people around them don’t recognize it as a right. Most women, especially in rural areas don’t know that a woman can refuse to go to a police station between 6am to 6pm. Also a woman has equal right to inheritance, but even today daughters are given less property over sons. It is for these reasons that education of the right of women among the general masses is so important because it is education, coupled along with stronger laws that can go a long way in protecting the rights of women.

Men, Transgenders and other members of the LGBT community

But there is another side to this picture which is pitifully ignored. In our drive to uplift women, we ignore the other two aspects of Gender Neutrality- the rights of men and members of the LGBT community. The Oxford Dictionary describes ‘Gender Neutrality’ as an adjective that is suitable for, applicable to, or common to, both male and female genders. It describes the idea that policies, language, and other social institutions should avoid distinguishing roles according to people’s sex or gender, and emphasizes on the equal treatment of men and women legally with no discrimination. It is a kind of society where equality will be established in its true sense, and established not at the cost of any gender.[15] Feminism in it truest sense embodies equal rights for men and women, all the special provisions for women were made to pull up their condition and give them a level playing field as to men. But protection at the cost of the other marginalized sections is not what it advocates.

There are two groups on the other side. Some laws in the name of protecting women are actively discriminatory toward men, and some laws don’t even recognize the existence of transgenders, let alone their rights. Up till a few years ago, the ‘other’ gender did not find a place anywhere and was a hush-hush affair. Section 304B and 498A of the Indian Penal Code (IPC) are termed as the guardians of rights of married women as it provides for protection in cases of dowry death and cruelty against women, if the death is within seven years of marriage. The clear intention behind these sections is to fasten guilt on the husband, or in-laws, though they might not, in fact, have caused the death or injury. It has become a custom to claim that all the women have been ‘driven to suicide’ due to dowry harassment. Under these sections, even if the allegation is false, there will be a trial and the husband is considered guilty until proven innocent.[16] The Supreme Court, in the case of Sushil Kumar Sharma v. Union of India, observed that such provisions are intended to be used as a shield and not an assassin’s weapon and termed it as ‘legal terrorism’.[17]

Again, Section 375 of the IPC clearly states than only a man can commit the offense of rape on a woman. So all other forms of rape by women on women, women on men and men on men are outside its scope. The immense social stigma attached to a rape victim is condemnable; however isn’t it retrograde to assume the victims to only be women and the perpetrators to only be men? India’s anti-sodomy law, Section 377, is the only resort for male victims of sexual offences. However, the law is fraught with challenges. Even in cases where a male victim is assaulted by a male attacker, it is not actually considered as rape. The law does not outline any difference between consensual and non-consensual sex between male adults. It is biased towards members of the LGBT community by bringing their sexual activities under the umbrella of ‘unnatural sex’ and providing neither legal right nor remedy. Moreover, if a female is the perpetrator, the victim is left with no option to seek justice.

Section 497 and 498 of the IPC also propagate discrimination, this time against both genders. Adultery can be committed only by a man, and not by a woman. If a man has sexual intercourse with a married woman and he does not have the consent of the husband of the woman for the sexual activity, such husband can prosecute the man only for adultery, not the adulterous wife. Further, Section 198 of the Code of Criminal Procedure, 1973 explicitly denies a husband the right to charge his wife with adultery and also denies a woman the right to charge her husband with adultery. Here, the wife is denied of any agency, and she can take no action against her husband, or her husband’s lover since women cannot be perpetrators, for adultery, although the husband can prosecute his wife’s lover, but not his wife. The consent of the man is given legal sanction as against the consent of the woman who obviously takes equal part in the sexual activity. The rationale behind not punishing the woman seems to be a perspective of seeing the woman as infantile and incapable of making a decision about her sexual behaviour, which seems to be a totally absurd concept in the present set of circumstances. Also, if the husband has an affair with an unmarried (or divorced, or widowed) woman, no one can initiate any action against anyone.

It is interesting to note that in the Criminal Law (Amendment) Ordinance, 2013, the crimes of rape and sexual harassment were gender-neutral. The term ‘rape’ was removed entirely and was substituted with ‘sexual assault’.[18] However, strong objections were raised by women’s groups and the Act ended up making the offences of rape and sexual harassment gender-specific. There are various propositions put forth by feminists in support of this regard, such as, men not being as vulnerable, them always wanting sex, women’s incapability to rape men, men not being similarly affected by rape, so on and so forth. Even the Criminal Law (Amendment) Ordinance, 2013, doesn’t recognize men’s’ rights in cases of stalking, unwelcome advances, disrobing and voyeurism.[19]

Undoubtedly, countries with gender-neutral rape laws reportedly have the lowest rates of rape in the world. Crimes like rape and murder do not see age, caste, colour of skin, nationality and yes, even gender or sexual orientation. Rape is seen across the extremes of age, sex and geographical boundaries. All these facts indicate that there is a definite need to recognize and accept that men are raped, they also become victims of physical abuse and violence, and they deserve as much protection from such gross crimes, as women do. At a broader level, do not all crimes affect different types of victims in different ways? Yet, with a few exceptions, prosecution is based on the sameness of the crime, and not the sameness of the effect. The latter would essentially imply that certain victims are protected more than others, flying in the face of equality before the law.

In order for such crimes to be recognized, what is important is that they must be reported substantially. An environment needs to be created where the plight of such men and transgenders are also heard, without the fear of being ridiculed. It is only the development and application of a gender-neutral law that will be effective in improving the reporting and registering of such crimes. The definition of rape must be reconsidered, sexual assault must be classified in accordance with various degrees of harm caused by each, and each must be defined in a comprehensive manner. Lastly, a system where one type of rape is given priority over others in the name of protecting women is self-defeating. Women and men (and other genders) need to unite and speak in one voice to build a culture against rape.[20]

In conclusion, it is important for us to recognize the rights of not only women, but also men and the LGBT community to ensure that the rights we ensure are also held up in reality and that the basic purpose of laws are maintained. Only then can we say with conviction that India has truly secured not only Gender Equality, but also Gender Neutrality. Only then will this dream will be translated into reality.

References

1. Anti-Discrimination and Sex Equality, Lawyers Collective, http://www.lawyerscollective.org/womens-rights-initiative/anti-discriminationsex-equality.html
2. Bharadwaj, Krishna H., Laws Protecting Women from Gender Discrimination in India- A Critical Analysis, Indian Journal of Research, Volume: 4, Issue: 9, Sept 2015, ISSN – 2250-1991, http://worldwidejournals.com/paripex/file.php?val=September_2015_1441430771__30.pdf
3. Constitutional (74^thAmendment) Act (1992), http://indiacode.nic.in/coiweb/amend/amend74.htm
4. Criminal Law (Amendment) Ordinance, The Gazette of India (2013), DL-N/04/0007/2003-13, http://indiacode.nic.in/acts-in-pdf/132013.pdf
5. Hablani, Chirag, Gender Neutrality in Indian Law, United Youth Journalists, https://unitedyouthjournalists.com/2015/11/06/gender-neutrality-in-indian-law-chirag-hablani-india/
6. http://censusindia.gov.in/Census_Data_2001/India_at_glance/fsex.aspx
7. http://indiacurrentaffairs.org/human-development-in-india-challenges-for-a-society-in-transition/
8. Important Constitutional And Legal Provisions For Women In India, http://www.legalserviceindia.com/helpline/woman_rights.htm
9. Kabra, Shweta, Gender Neutral Laws- How Needful in India?, http://www.manupatra.co.in/newsline/articles/Upload/3FE150D0-E784-49BD-8328-4134C0E87955.pdf
10. National Family Health Survey 2005-2006
11. NSSO Estimate 2005-2006
12. Oglesbee, Jill M., The Shah Bano Controversy: A Case Study of Individual Rights, Religious Tolerance, and the Role of the Secular State, 2015, Vol. 7 No. 08, http://www.inquiriesjournal.com/articles/1061/3/the-shah-bano-controversy-a-case-study-of-individual-rights-religious-tolerance-and-the-role-of-the-secular-state
13. SC allows rape victim to abort 24-week-old foetus, The Hindu, http://www.thehindu.com/news/national/supreme-court-allows-mumbai-rape-survivor-to-abort-24weeksold-abnormal-foetus/article8897230.ece
14. Srivastava, Avrati, Gender-neutral Indian Penal Code: Way for a Gender-just Society, http://www.legalservicesindia.com/article/article/gender-neutral-indian-penal-code-2011-1.html
15. World Bank Database, http://data.worldbank.org/data-catalog

[1] Kabra, Shweta, Gender Neutral Laws- How Needful in India? Retrieved from http://www.manupatra.co.in/newsline/articles/Upload/3FE150D0-E784-49BD-8328-4134C0E87955.pdf on 25/8/17

[2] Constitutional (74^thAmendment) Act (1992). Retrieved from http://indiacode.nic.in/coiweb/amend/amend74.htm on 25/8/17

[3] Retrieved from http://indiacurrentaffairs.org/human-development-in-india-challenges-for-a-society-in-transition/  on 25/8/17

[4] Retrieved from http://censusindia.gov.in/Census_Data_2001/India_at_glance/fsex.aspx on 25/8/17

[5] Retrieved from National Family Health Survey 2005-2006

[6] World Bank Database, Retrieved from http://data.worldbank.org/data-catalog on 25/8/17

[7] Retrieved from NSSO Estimate 2005-2006

[8] Supra 3

[9] Supra 2

[10] Anti-Discrimination and Sex Equality, Lawyers Collective, Retrieved from http://www.lawyerscollective.org/womens-rights-initiative/anti-discriminationsex-equality.html on 27/8/17

[11] Bharadwaj, Krishna H., Laws Protecting Women from Gender Discrimination in India- A Critical Analysis, Indian Journal of Research, Volume: 4, Issue: 9, Sept 2015, ISSN – 2250-1991. Retrieved from http://worldwidejournals.com/paripex/file.php?val=September_2015_1441430771__30.pdf on 27/8/17

[12] Oglesbee, Jill M., The Shah Bano Controversy: A Case Study of Individual Rights, Religious Tolerance, and the Role of the Secular State, 2015, Vol. 7 No. 08. Retrieved from http://www.inquiriesjournal.com/articles/1061/3/the-shah-bano-controversy-a-case-study-of-individual-rights-religious-tolerance-and-the-role-of-the-secular-state on 27/8/17

[13] Important Constitutional And Legal Provisions For Women In India. Retrieved from http://www.legalserviceindia.com/helpline/woman_rights.htm on 27/8/17

[14] SC allows rape victim to abort 24-week-old foetus, The Hindu, Retrieved from http://www.thehindu.com/news/national/supreme-court-allows-mumbai-rape-survivor-to-abort-24weeksold-abnormal-foetus/article8897230.ece on 28/8/17

[15] Srivastava, Avrati, Gender-neutral Indian Penal Code: Way for a Gender-just Society, Retrieved from http://www.legalservicesindia.com/article/article/gender-neutral-indian-penal-code-2011-1.html on 28/8/17

[16] Ibid.

[17] Writ Petition (civil) 141 of 2005

[18] Criminal Law (Amendment) Ordinance, The Gazette of India (2013), DL-N/04/0007/2003-13, Retrieved from http://indiacode.nic.in/acts-in-pdf/132013.pdf on 31/8/17

[19] Hablani, Chirag, Gender Neutrality in Indian Law, United Youth Journalists. Retrieved from https://unitedyouthjournalists.com/2015/11/06/gender-neutrality-in-indian-law-chirag-hablani-india/ on 28/8/17

[20] Supra 13