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
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.
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.”