Before reading one thing we must all understand is what do we mean by gender neutral. To simply define it, gender neutral does not mean preference of one gender but the opposite i.e., preference to no gender. Having a neutral approach towards a person regardless of their gender. What I will be trying to examine further will be whether Indian judicial System is gender neutral?
When you compare the crime rates of the country, according to NCRB crime rate report, 405326 crimes in 2019, 371503 crimes in 2020 and 428278 crimes in 2021 were committed against women only, which is a concerning number. But there are no such crime reports for men from government websites. Adding on, according to the wire, 31.677 rape cases were registered in India in 2021, around 87 rapes happening daily. NCRB report also observes 6589 dowry deaths in 2021. Furthermore, there are many specific acts for crimes against women like protection of women against domestic violence act 2005. There is also a maternity benefits act 1961 for pregnant women providing them with provisions like paid leaves. It is understandable that women physically face more problems during pregnancy, but it is not just the woman becoming a parent, the man is as much of a parent as the woman. During the whole pregnancy period and post it also, aren’t both parents responsible of taking care of the child, then why is it only women get paid leaves and not men. And transgenders are not even part of the list yet. Another area we must question is, when it comes to legal age to get married, why is it that for women it is 18years whereas for men it is 21 years. According to pew research centre’s report, countries like Australia, Finland, Greece, Hungary, Germany, Iceland, Switzerland and Russia, the marital age is same for both boys and girls[1]. Moreover, only a women police officer can arrest a women offender, but when it comes to a male offender, a male or female either can arrest him. As much as I understand , women might not be comfortable with male officers, but in that case, won’t the same apply to male offenders.
One thing we can conclude from our observations is that laws are women centric. Crimes like rape, domestic violence are committed more against women than men. And hence are only for women.
But even if laws are said to be more women centric, we still have to fight for basic rights like marital rape. How does your marital status decide whether rape is valid or not. A simple definition of rape would be non-consensual intercourse. Being married or unmarried does not justify rape. A husband forcing his wife into non-consensual intercourse is just like any other stranger raping a woman.
The rape law i.e., section 376 of IPC, uses the terms “woman” and “penile penetration”, and because the latter is not possible by a woman to a man, the concept of rape against men is removed from the picture. What is missed out here is that though it is biologically impossible for a woman to penile penetrate a man, there are other ways of penetration. Also, what if a man is raped by another man (as penile penetration is possible for a man to a man). what is the way out in such situations. One more thing that must be noted is that even the annual crime report by National Crime Records Bureau does not include the category of crime against men, one of the reasons for which would be that crimes against men are not reported. “The 4 most common reasons why domestic violence cases or other crime cases against Indian men go unreported: general stereotypes against males, fear of fake cases, societal and family pressure, and denial”[2]. I once read it somewhere that it is not who or what you are that matters. It is what you think that matters. And we must change our thinking, our understanding of male and masculinity as a first step towards change.
But this doesn’t mean that specific laws for one gender are wrong.
A recent case, Varun Bhatia Vs State and another 2023, clarified that having gender specific laws is not going against any gender. Justice Swarana Kanta Sharma had ruled that gender specific laws are to address unique issues faced by that particular gender and not against any other gender. What we fail to see here is that the unique issues talked about here are not unique anymore. It was further noted that any legal proceeding regardless of gender relies on availability of adequate evidence and adherence to procedures of law. And hence gender specificity should not compromise fundamental principles of fairness and justice[3]. Another important statement by the court in this case is “In India, the criminal justice system is adversarial in nature. However, it cannot be seen as adversarial between men and women per se. Instead, it should solely revolve around two individuals: one being the complainant and the other being the accused irrespective of the gender, however, at the same time, while adjudicating the cases firmly remembering and appreciating the social context and situation of a particular gender who may be in a lesser advantageous situation than the other,”[4]. The court clearly lays down that a victim should be heard regardless of their gender. But the problem is the implementation of this. In reality, Certain crimes are gendered. For example, when a car accident is reported and one of the drivers happens to be a woman, it is assumed that the woman must be at fault because there is a presumption in society that women are bad drivers. Similarly, in a different situation, say, if a man goes to a police station to report sexual assault, he is a victim to, he would be mocked and laughed at because, the society follows messed up ideas of masculinity, like men should always be strong or men don’t cry etc.
And even if laws are not gendered, the application of it could be. For example, in custody cases, women are given preference, as it is considered that a woman’s primary duty is child rearing and a mother’s presence is more important than a father’s presence for a child. Another example would be divorce cases. There are many cases when women falsely accuse their husband a grave crime like domestic violence to get divorce and alimony and manier times the court sides with the woman. Also, usually what we observe in divorce cases, the woman asks and is given alimony but never the other way round. Like what if the husband relies on his wife for finances.
Law and society are interconnected and our history with prevailing patriarchy, is such that we as a society have removed even the possibility that a man can also be a victim of a crime and not the offender only. One of the main reasons for this would be that crimes against men are not even reported. We have laws for crimes against women and children, even specific acts, but about men. What about crimes against men? What options does a man have to demand justice, if say he is raped or sexually assaulted or faces domestic violence or is wrongly accused of a crime against women? We are in the 2023 and if we can progress in various fields, it’s high time we realise that men are too strong to be a victim or are not emotional. A big part of being human is emotions. And hiding or supressing emotions is cowardice if anything. We are human and we feel, hence we must understand that having emotions is not weak, it’s being human. And men are also human. To Conclude, what one claims to be is different from what one is. Ideality is not reality, but reality can become what we idealise. Hence, we can conclude that Indian laws are in fact women centric. There are repercussions for this like fake cases but what we need to understand here is that women and men are not placed at the same pedestrian as of now. We can only be gender neutral when all genders are on the same starting point. Until then we could start important laws like rape laws being gender neutral if it could prevent more people from being rape victims. If crimes are becoming gender neutral, then it is time that the laws also be gender neutral. And for this change to happen, the society’s thinking must change first. Furthermore, what we must not forget is that there are more than two genders, namely, male, female and third gender or transgender. It is a coming of the age learn but we must take into consideration that to.
[1] Jaswal M, “Increasing Legal Age of Marriage to 21: Is It a Boon or a Bane for Indian Women? | Mint” (mint, March 6, 2022) <https://www.livemint.com/news/india/increasing-legal-age-of-marriage-to-21-is-it-a-boon-or-a-bane-for-indian-women-international-women-s-day-11646540444993.html>
[2] Pandey A, “9 Eye-Opening Facts & Statistics About Domestic Violence Cases Against Indian Men” (http://www.mensxp.com, June 2, 2022) <https://www.mensxp.com/special-features/features/108932-domestic-violence-cases-on-indian-men-facts-and-statistics.html>
[3] Thapliyal N and Law L, “Live Law” (Live Law, August 29, 2023) <https://www.livelaw.in/high-court/delhi-high-court/delhi-high-court-gender-specific-laws-gender-neutral-judiciary-236438?infinitescroll=1>
[4] Thapliyal N and Law L, “Live Law” (Live Law, August 29, 2023) <https://www.livelaw.in/high-court/delhi-high-court/delhi-high-court-gender-specific-laws-gender-neutral-judiciary-236438?infinitescroll=1>
Author: Ashwika Dubey
Juris Centre 