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NEED FOR GENDER NEUTRAL LAWS – AN ECLIPSED REALITY

Gender Neutral Laws - Mirudhula A

INTRODUCTION

The universe in which we live is made up of different and varied lives and there is a certain diversity whose beauty is compromised in any way. Our culture has set out laws for men and women that are neither wise nor fair at this point in time. Although there is a wake-up call to demonstrations against women’s suffering, there is no such thing for males. Men are always expected to be brave, strong, and bold and are not considered “manly” without these attributes. Men are usually perceived to be physically aggressive, not heterosexual, and feminine. This age-old notion leads to the existence of an irrational perception wherein if a male sexual victim were to report his account, he would be considered feminine. The continuing incorporation of this injustice has silenced many men to speak out about their intolerable abuses to the public. Men, too are abused in many respects, and there is no legal provision to fix the same to an extent where we can wonder if there is equality between men and women in the legal justice system for sexual offenses.

 SEXUAL ABUSE – ONLY TO WOMEN?

The pages of law that attempt to define ‘what is the outrage of modesty’ in the Indian Penal Code through a Supreme Court case is where everything begins. Modesty generally means behavior, manner, or appearance intended to avoid impropriety or indecency, however, the word “modesty” has not been defined in the Indian Penal Code. According to the Oxford English Dictionary, modesty is a quality which is a “womanly propriety of behavior; scrupulous chastity of thought, speech and conduct”. [1]

Section 354 of the Indian Penal Code states about the assault or criminal force to a woman with intent to outrage her modesty.[2] —

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with impris­onment of either description for a term which may extend to two years, or with fine, or with both.[3]

Direct reading of this provision indicates that men do not have any modesty but only can outrage the modesty of women.

On dissecting the essence of the section, it can be identified that:

  1. There exists a criminal force against the woman
  2. There exists an intention to outrage her modesty
  3. There exists, additionally, a description of the punishment

This very provision was explicitly made for women to address the outrage of their modesty as it is generally perceived that women belong to the only gender that, historically, has been under oppression and vulnerability. While it is prudent enough to emphasize more on women, in the current dynamics of society, we generally try to neglect other genders or worse consider them to be dominant and perfectly fine.  Direct reading of this provision implies that men do not have any modesty.

While the third point is a formality, it is important to focus on the first two aspects. And this thinking can lead one to have certain questions as I had:

  1. Is modesty the sole subject of women?
  2. Is there a similar, explicit provision for males?

My contention is that we have a very detailed and well-explained constitution presiding over several other laws. Similarly, women have extensive laws to claim justice from if they fall victim to sexual violence. This can be very well observed in the way section 354 and 375 of the Indian Penal Code is structured. These sections explicitly state that when a ‘man’ stalks, intentionally disrobe, etc., a woman, he is punishable, but for vice versa, there is no such law.

Likewise, section 375 very begins with – “A man is said to commit “rape” if he—”[4]. The very verbatim confines the scope of rape as an offense committed only by a male to a female. The section further has very detailed subsections as to the type of penetrations, consent, and a separate section for punishment for rape, i.e., section 376. The binary analysis of these provisions directly excludes all other genders except women.

While one may argue with me that rape committed to men and exploitation of the LGBTQ community can be heard under section 377, which was recently amended, it still doesn’t satisfy the absolute justice quotient. This is mainly because, unlike section 354 and 375, section 377 is not very detailed or elaborative.

Section 377 reads that:

“Unnatural offenses – Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine”.[5]

MEN ARE ALSO ABUSED!         

“With male as rape victims, a survey was carried out between college students in which it was found that 10.5% of men were raped and there were attempts of rape on other 10.5% men.”[6]There is an impulse to view the rape accounts as specifically that of a man violating a woman does an injustice to those whose own rape stories do not fit into our conventional understanding setup.[7]

Why men are not even included in this realm? There is a whole world unheard, crying in silence for the suffering that deserved equal attention, but the stigma of manhood is standing as a barrier to express it.

There are several instances where a male gets exploited. While we strive for equality and the right to life under articles 14 and 21 of the Indian constitution, respectively, upon comparing the existing laws and reality, there is certainly a cavity eclipsed. We may celebrate POCSO (“Protection of Children from Sexual Offences”) for the sexual assault of male children, however, there is no such protection for adult males.

GENDER NEUTRAL LAWS – A FAILED ATTEMPT

A first attempt to make general laws bloomed the case which awaited the trial court to provide justice that a male rape victim requires. “Sexually assaulted men should be given the same protection of the law as given to female victims”, an unconventional point of view was said in In the case Sudesh Jhaku v. K.C. Jhaku.[8] This was further emphasized in the case Sakshi v. Union of India the Apex Court, which was refused as it would amount to confusion in reading section 375, however it directed the whole issue to the law commission. Thus, as a consequence, the 172nd law commission recommended a holistic reform in rape laws which were reflected in Criminal. The bill was put to a pause even before it could be considered as the gang rape of 23-year-old Nirbhayashocked the whole nation. This grave took the space that could have been utilized for gender-neutral laws; not forget the contestations of women groups. Subsequently, a report was asked to be submitted with regard to amends required in rape law, by Justice Verma Committee (JVC). JVC report recommended an enlargement of the definition of rape under Section 375 of IPC, 1860 by not keeping it concise to penile-vaginal intercourse and to make it gender-neutral, which were incorporated in Criminal Law Amendment Bill 2013.

The recent update on this topic is the bill by Mr. KTS Tulsi which aims to implement gender-neutral laws, though it hasn’t been ratified yet.

CONCLUSION

The Supreme Court of India in its judgment in NALSA v Union of India [9], said that the “recognition of one’s gender identity lies at the heart of the fundamental right to dignity” and that “discrimination on the basis of … gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution”.

It’s high time that we start to think more gender-neutral, leaving back the age-old social stigmas and look forward to making a more egalitarian and humanitarian society through the hands of the law. I would suggest certain inclusions in the Indian penal legislation with regard to sexual offenses. There should be a detailed and inclusive provision including male rape, rape by females, etc. Further, the scope of section 375 should be enlarged from its meaning to its wordings. The words ‘men’ and ‘women’ should be replaced with ‘any person’ who, on the face, creates a general idea. Further, the term carnal intercourse in section 377 can be more elaborative because being detailed and explanatory is not new to the Indian context. Further, a more holistic and clear provision should be provided to address the sexual abuses faced by the LGBTQ community.

Author(s) Name: Mirudhula A (School of Excellence in Law, TNDALU, Chennai)

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[1] Rupan Deol Bajaj vs. K.P.S. Gill, (1995) 6 SCC 194.

[2] § 354, Indian Penal Code, 1860.

[3] §354, Indian Penal Code, 1860.

[4] § 375, Indian Penal Code, 1860.

[5] § 377, Indian Penal Code,1860.

[6] https:// www.cdc.gov/violenceprevention/pdf/nisvs_sofindings.pdf.

[7] STOKES, John, “India’s Law Should Recognize that Men Can Be Raped Too” Scroll.in (11 September 2014), online: Scroll. in <http://scroll.in/article/676510/India’s-law-should-recognise-that-men-can-be-raped-too>Google Scholar.

[8] 1998 CriLJ 2428, 62 (1996) DLT 563, 1996 (38) DRJ 22.

[9] NALSA v Union of India AIR 2014 SC 1863