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Is India ready for gender-neutral laws?

Speaking strongly in favour of gender-neutral laws, Constitutional lawyer and feminist intellectual Karuna Nundy points out, “vaginal intercourse has been kept legal and the anal intercourse has been criminalised.”

Written by Sonakshi Awasthi | New Delhi | Updated: October 18, 2017 11:00 am
sexual harassment india, gender neutral laws india, gender neutrality india, gender equality india, gender specific india, metoo campaign india, metoo campaign sexual harassment, indian express news “If a married woman does not feel the need to return to his husband, then why should she be forced under the garb of restitution of conjugal rights. I want equality for all genders.” (Thinkstock image)

Amid the ongoing #MeToo campaign where men are also identifying as victims of sexual harassment, the Delhi High Court is hearing a PIL praying for gender-neutral rape laws. The plea also comes close on the heels of a seven-year-old boy allegedly sexually abused and murdered in a Gurugram school, and also when the Supreme Court has raised the age of consent in the country.

In India, while sexual crimes against minors are covered under the POCSO Act, 2012, male adults have no such recourse to legal aid except to Section 377 of the Indian Penal Code which, too, is, arguably, vague. There is also widespread criticism that women-centric legislations, like the domestic violence and dowry acts, are rampantly misused.

What do gender-neutral laws mean?
Under gender-neutral laws, all genders are equal in the eyes of law, either by explicitly stating every gender in law or by making the language of law gender neutral. For instance, under the POCSO Act, 2012, a child has been defined as “any person below the age of eighteen years,” without specifying any gender and using the word ‘any’ denotes equality to all genders.

The Justice Verma Committee of 2012 underlined the need for India to recognise different sexual orientations and recommended inclusion of transgenders along with other genders, i.e. men and women while drafting gender-neutral laws. “However each of these requires to be codified distinctly and separately as victims and not clubbed together in a gender-neutral term, ‘person’,” said Vrinda Grover, a lawyer and a human right activist, while speaking to indianexpress.com

The petition
Among the plethora of Indian laws, most are gender specific to women. Rape under Section 375 in the IPC begins thus: “A man is said to commit rape, if he…” Sanjiv Kumar, the petitioner, seeks to challenge the existing IPC provisions dealing with rape as they recognises only a man as the perpetrator and the woman as a victim. Insisting that he wanted equality of all genders, Kumar said: “If a married woman does not feel the need to return to his husband, then why should she be forced under the garb of restitution of conjugal rights. I want equality for all genders.”

Speaking about western countries and how many such countries follow gender-neutral laws, petitioner Kumar says, “In western countries, women are also perpetrators. It comes to light only because it gets reported there.”

Is India ready for gender-neutral laws?
Out of the 48 countries in Asia, only four countries, Bhutan, Kazakhstan, Kyrgyzstan and South Korea and almost all of Europe and North America, have gender-neutral laws. However, Flavia Agnes, co-founder of Majlis Law Firm, believes that India is not ready for this.

Pointing out that violence against women is rampant in India, Agnes said: “Most other countries do not have these problems and there is a relative gender parity between them. So in a situation of deep-seated patriarchy and hatred towards women, making laws gender neutral will only add to the problem since men have more power, they will be able to use these against women out of sheer vengeance.”

Rape, sexual harassment, domestic violence, custodial violence, adverse sex ratio, dowry-related murders of young brides, molestation are among the forms of violence that women face in India.

“We are concerned that if there is gender neutrality regarding perpetrators, women will be caught in prosecution which they will find it difficult to deal with, their families will not financially support them to fight the litigation and they will be languishing in jails as undertrials for a very long time where their children will be neglected,” added Agnes.

The use of the phrase “gender-neutral”, while appearing to be neutral and equitable, actually could be a cause of grave injustice and conceal the harsh vulnerabilities that certain persons have to live with, said Vrinda Grover, a lawyer and a human right activist. The purpose of the law is to provide protection, and those who are marginalised, socially and otherwise, require the protection of the law,” she told indianexpress.com.

However, acknowledging men as victims of sexual violence, Grover said she is not in favour of gender-neutral language. “In certain circumstances, men can also be at the receiving end of severe sexual violence, particularly in situations of conflict, in situations of caste and communal violence etc. Even while understanding the vulnerabilities of these persons, it is necessary to provide certain specific kinds of protection and not merely amend the law to reflect a gender-neutral language.”

Putting forth his view in the context of the Indian society, Senior Advocate Colin Gonsalves said: “Law should be discriminatory for women and if it is a little discriminatory against men, it doesn’t matter. Positive discrimination in favour of women and against men is constitutionally permissible.”

“If gender neutral laws are enacted in India, it would bring forth a lot of counter cases against women,” added Gonsalves.

In favour
Justice Verma Committee of 2012 favoured gender-neutral laws completely in its report and the Criminal Law (amendment) Ordinance 2013 was published in The Gazette of India which upheld the Committee’s view. In the spirit of gender-neutral laws, sexual harassment, voyeurism and stalking were added to the Indian Penal Code and certain amendments and deletions were made to IPC, CrPC and Evidence Act. But the ordinance on making all laws gender neutral lasted for 58 days and was repealed and replaced by The Criminal law(Amendment) Act 2013. Therefore, the current provisions stating stalking and sexual harassment became gender-specific, where the man is the sole perpetrator and women are the sole victims.

Section 377 of IPC states “voluntarily carnal intercourse” with “any man, woman or animal” as an unnatural offence. Breaking this down, it simply means that men who have undergone sexual abuse or any other kind of sexual violence, can find recourse under Section 377 against any gender. Section 377 is one of the few gender neutral provision that India has, unlike rape.

Speaking strongly in favour of gender-neutral laws, Constitutional lawyer and feminist intellectual Karuna Nundy points out, “vaginal intercourse has been kept legal and the anal intercourse has been criminalised.”

She, however, cited an example in case gender-neutral laws are enacted in the country and the perpetrator falls within its ambit: “If a Thakur man raped a Dalit woman, he would be advised by his lawyer to file an FIR against the Dalit woman.”

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  1. Amit Ghosh
    Jan 10, 2018 at 12:05 pm
    All laws in India are anti men and women misuse laws. Women commission won't allow gender neutral laws to be passed. Women commission wants all women enjoy free money from other men and not work or get respectable earning.
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    1. K
      Kumudini
      Oct 28, 2017 at 8:34 pm
      Women usually have to undergo various levels of discrimination at work. It may be the 21st century, but women are still under this cloud that labels them as less capable than men. With such a background it is surprising that a higher number of women have come to the forefront as high ranking officers in many industries nowadays. However, gender inequality still has a long way to go. Hopefully, our daughters would find a world better welcoming than ours. s: goo.gl/HBvfqg
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      1. Amit Ghosh
        Jan 10, 2018 at 12:09 pm
        Which world are you talking about? Open your eyes women must learn to respect gender neutrality and really work hard to enjoy dignity and carve a niche for themselves. Your statements are typical feminists points and you want to use such false data to get free goodies for women. U r like those quota holder who beg with a plate in hand.
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      2. Sanjjiiv Kkumaar
        Oct 18, 2017 at 2:59 pm
        I feel sorry for Colin Gonsalves who says.”Law should be discriminatory for women and if it is a little discriminatory against men, it doesn’t matter.Positive discrimination in favour of women against men is cons utionally permissible" Sorry Mr Colin Gonsalves.you couldn't be more wrong". Article 15(3) is for Empowerment, it's not for "EMPOWERMENT" if a women has committed Crime. Colin Gonsalves logic of "Positive Discrimination" in punishing a women perpetrator of crime( say for example Murder) will toss up whole IPC, CrPC. IPC comes when someone has committed a crime. In crime, there is no ve Discrimination Mr Colin Gonsalve
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        1. H
          HIMANSHU
          Dec 4, 2017 at 8:03 pm
          Femi s want INDIA to be destroyed.Day not far off when people will burn politicians corrupt Feminist judges
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          1. Amit Ghosh
            Jan 10, 2018 at 12:10 pm
            Agree with u.
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        2. Sanjjiiv Kkumaar
          Oct 18, 2017 at 2:33 pm
          What was the need for POSCO pertaining to Sexual Assault of MALE CHILDREN if IPC 377 covers everything FOR MALES(children and adults)?
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          1. Sanjjiiv Kkumaar
            Oct 18, 2017 at 2:22 pm
            You are wrong about IPC 377. To charge someone with IPC 377, carnal intercourse is necessary condition AND Penetration is an essential element of this. Sexual Assualt has much broader meaning. Please see IPC 375 definition and Section 3 of POSCO Act. You contention "Breaking this down, it simply means that men who have undergone sexual abuse or any other kind of sexual violence, can find recourse under Section 377 against any gender. Section 377 is one of the few gender neutral provision that India has, unlike rape." IS SIMPLY WRONG AND MISLEADING. IF THAT WUD HAD BEEN CASE WHAT WAS THE NEED TO BROADEN IPC 375 DEFINITION. AS PER YOUR IPC 377 WOULD HAVE COVERED IT. There is no law in India as of now to protect male children turning into 18 from Sexual Assault.
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            1. Sanjjiiv Kkumaar
              Oct 18, 2017 at 2:27 pm
              You contention - Your contention Typo AS PER YOUR - As per You
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