Gender Neutrality in India
GENDER NEUTRALITY IN INDIA
- Sanchit Meena, Symbiosis Law School, Pune
Gender Neutrality- Rights of one, abrogation of another?
The legal framework of a country is based on its societal skeleton. The concept of gender neutrality in the legal aspect refers to the idea of equality in the recognition of the rights of all individuals irrespective of their sexes.
Gender neutrality is the idea that policies, language, and other social institutions which characterize social structures, gender roles, or gender identity, should avoid distinguishing roles according to people\'s sex or gender. This is believed to help in avoiding discrimination based on gendered conceptions of every phenomenon.
This article intends to draw a comprehensive study on the 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.
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 side 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.
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 16 provides for equality of opportunity in matters of public employment.According to 2001 census report, the sex ratio stands at 933 females per 1000 males.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.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.
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.
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. 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.Again, Section 375 of the IPC clearly states than only a man can commit the offense of rape on a woman. 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.
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.
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
Conclusion
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.
References :-
http://censusindia.gov.in/Census_Data_2001/India_at_glance/fsex.aspx
http://www.legalserviceindia.com/helpline/woman_rights.htm
http://www.legalservicesindia.com/article/article/gender-neutral-indian-penal-code-2011-1.html
http://censusindia.gov.in/Census_Data_2001/India_at_glance/fsex.aspx
http://www.legalserviceindia.com/helpline/woman_rights.htm
