Gender-neutral Indian Penal CodeIt has been multiple decades now that we are talking about EQUALITY. The word has literally flooded the entire print and electronic media. Everybody seems to be talking about equality, how it is essential for a healthy society and the various means and methods to achieve the same.
Author Name: Avrati Srivastava
It has been multiple decades now that we are talking about EQUALITY. The word has literally flooded the entire print and electronic media. Everybody seems to be talking about equality, how it is essential for a healthy society and the various means and methods to achieve the same.
Gender-neutral Indian Penal Code: Way for a Gender-just Society
“In 2030, we want to be able to talk about a world that has achieved gender equality, a 50:50 planet.”
It has been multiple decades now that we are talking about ‘EQUALITY’. The word has literally flooded the entire print and electronic media. Everybody seems to be talking about equality, how it is essential for a healthy society and the various means and methods to achieve the same.
One of the most notable manifestations of inequality worldwide is GENDER INEQUALITY. Consequent to a very strong feminist movement that began towards the middle of the twentieth century, throwing light on the gross inequalities and atrocities that women suffer on a day-to-day basis, a need was felt to make amendments in the law such that women could come on an equal footing with men. The legislations we started with, were fairly, perhaps fully legitimate for the times, but the dawn of the passing day has put men in such gullible a position, that they are victimized by the so-intended “women empowering” legislations. Much less has been said about how we have become a prison state by approving virtually every possible draconian law in the name of curbing crimes against women, condoning arbitrary arrests of ordinary citizens, and imprisoning them in deplorable conditions.
Thus, this decade has acknowledged the need of a GENDER-NEUTRAL society. The Oxford Dictionary describes ‘Gender Neutrality’ as an adjective that is suitable for, applicable to, or common to, both male and female genders. It describes the idea that policies, language, and other social institutions should avoid distinguishing roles according to people's sex or gender, and emphasizes on the equal treatment of men and women legally with no discrimination. We envision a kind of society where equality will be established in its true sense, and established not at the cost of any gender!
Given below is a detailed analysis of how the legislation in India is biased against men, with special emphasis on the Indian Penal Code, 1860, followed by a few suggestions to make the laws Gender-Just.
Unjust Indian Penal Code
The Indian Penal code, in its basic form, is the main criminal code of India, which lists all the cases and punishments that a person committing any crimes is liable to be charged with, and covers any Indian citizen or a person of Indian origin.
S.2 of the said Code lays down that every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India. As is established by this section, the law does not distinguish between criminals, and every person who has committed an offence is liable to punishment under the code. However, the assumed mindset that “all violence is male generated”, does not only create a gender divide in the society, but provides a shield to the crimes perpetrated by women.
“Women commit crime for the same reasons that men do. Crime has no gender, and neither should our laws.”
Now, let’s throw some light on a few anti-male provisions of the Indian Penal Code. Although the instances are plenty, we will limit our discussion to the four major areas of law, viz., a) Dowry Death and Cruelty against Women, b) Rape, c) Adultery, d) Laws dealing with Modesty of a Woman.
Laws that Typically Favour Women
A) Section 304B (Dowry Death) and Section 498A (Cruelty Against Women):
The term ‘Dowry Death’ sparks off vivid imaginations in one’s head of a woman being taunted and harassed for money and finally, hanged to death within the four walls of her house. Feminists have us believe that every unnatural or untimely death of a married Indian woman is dowry death. Not only that, the feminist hyperbole on “bride killing” and “dowry harassment” makes it look like Indian men have an uncanny propensity to commit violence on their wives for money and property.
Section 304B states that,
a) If the death of a woman is caused by burns or bodily injury, or any other abnormal circumstances,
b) within seven years of her marriage,
c) provided she has been subjected to cruelty or harassment by her husband, or any of his relatives, for, or in connection with demand for dowry,
-such husband, or such relatives, shall be punished with imprisonment for a term which shall not be less than seven years, but which may extend to imprisonment for life.
Section 498A specifies that if cruelty and harassment are shown to be inflicted upon a married woman by her husband, or by any relative of her husband, such husband, or such relatives of the husband, shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine. This section should be read along with S. 113A of the Indian Evidence Act to raise a presumption regarding abetment of suicide by the husband of a married woman.
The above two sections are non-bailable, non-compoundable, and cognizable offences in India. 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. The Supreme Court of India has termed this misuse of the law “legal terrorism”.
Justice Saldana’s remarks are a testimony to the way these laws are being misused to the detriment of innocent citizens:
“…we need to sound a note of caution that the police and investigating authorities should not improperly and technically jump to the conclusion that merely because death has occurred that ipso facto a criminal offense has been committed. In as many as 44% of these cases prosecution is thoroughly unjustified. The consequences of these charges are extremely grave because the accused husband and invariably family members are placed under arrest. There are serious social and economic repercussions.”
According to the National Crime Records Bureau statistics, in 2012, nearly 200,000 people including 47,951 women, were arrested on unestablished allegations of dowry offences. Surprisingly, only 15% of the accused were convicted.
Every year, twice as many married men, compared to women, commit suicides succumbing to verbal, emotional, economic and physical abuse by their wives and in-laws. The recent demise of Pushkar Singh in 2008 is one of the countable few cases that at least caught some media attention. Sadly, even though his suicide note bears evidence to the fact that he was financially and emotionally destroyed because of false criminal cases filed against him and his family by his wife, she was not even called in for questioning by the police until some family rights activists mounted pressure on them. Deaths of these men make for the brief stories in newspapers stating that a certain man “killed himself due to family issues or financial problems”. Syed Makdoom’s Case met a similar fate.
The Supreme Court, in the case of Sushil Kumar Sharma v. Union of India, observed that such provisions are intended to be used as a shield and not an assassin’s weapon.
The Court and the Legislature have to make certain changes if the laws of matrimonial cruelty are to be of any deterrence. The current NDA government is working on the proposal to make these sections compoundable. This means that the law, if amended for the better, would have provisions for settlement between the warring couple, if the court allows it.
Looking into the recent observations and the increase in the misuse of this Section, following suggestions are proposed:
i) One of the most significant moot questions is, are these laws really helping curb the menace of dowry and cruelty against women? Is legal terrorism the solution to all of women’s problems? Are these laws really changing the mindset of the people who continue to treat women adversely?
People who oppress women, continue to do it, whether with, or without the existence of such ‘women empowering’ legislations. What we really require is a social change, more than a legislative change.
ii) Section 304B of the said Code is only a gender-biased duplication of the previous sections that deal with murder and abetment to suicide. This section, therefore, must either be repealed, or amended and made gender-neutral. Specifically, the word ‘spouse’ must be used instead of the words ‘husband’ and ‘wife’.
iii) Burden of proof must lie on the complainant, and not on the accused, in alignment with the Universal Declaration of Human Rights which proclaims that “everyone charged with a penal offence has the right to be presumed innocent until proved guilty.”
iv) In order to provide further relief, the offences could be made bailable and compundable.
v) Women and their families, who file such false complaints, must be penalized heavily, either by way of fine, or imprisonment, or both.
B) Section 375 (Rape)
According to S. 375 of the IPC, you have to be a man to officially rape, and a woman to officially get raped! The section does not recognize men as rape victims. India’s anti-sodomy law, 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. Moreover, if a female is the perpetrator, the victim is left with no option to seek justice!
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”. 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.
“I have doubts whether a woman can commit rape; the reason is that a man has to be aroused sexually to be able to have sex with a woman. If a woman tells a man that he must have sex with her, it won’t work because the man will be so frightened and disorientated that he won’t really be able to do it.” Sarrel and Masters (1982) conducted case studies on 11 men who had been sexually assaulted by women. The men went through humiliation, anxiety, fear, anger and terror and yet responded sexually. They had erections; several even reported ejaculation. The authors even concluded that anxiety increases sexual arousal.
In a recent study, it was found that out of 222 Indian men being surveyed, 16.1% had been coerced into having sex. Despite male rape not being researched as widely as female rape, there are several statistics to suggest that men are raped and the prevalence of male rape is wider than is generally presumed. For instance, a 16-year-old boy claimed that his best friend’s mother had been sexually assaulting him for the past three months (2015). Male rape happens, but is seldom reported. Undoubtedly, countries with gender-neutral rape laws reportedly have the lowest rates of rape in the world.
Crimes like rape and murder do not see age, caste, colour of skin, nationality and yes, even gender or sexual orientation. Rape is seen across the extremes of age, sex and geographical boundaries.
All these facts indicate that there is a definite need to recognize and accept that men are raped, they also become victims of physical abuse and violence, and they deserve as much protection from such gross crimes, as women do. At a broader level, do not all crimes affect different types of victims in different ways? Yet, with a few exceptions, we prosecute based on the sameness of the crime, and not the sameness of the effect. The latter would essentially imply that certain victims are protected more than others, flying in the face of equality before the law.
And in order for such crimes to be recognized, what is important is, that they must be reported substantially. We need to create an environment where the plight of such men is 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. Lastly, a system where one type of rape is given priority over others in the name of protecting women is self-defeating. Women and men (and other genders) need to unite and speak in one voice to build a culture against rape.
Other aspects of Rape Laws:
i) A man having sexual intercourse without a woman’s will - No guideline as to prove a woman’s will here. She might have had consensual sex and still allege rape with a vindictive attitude.
ii) IPC 376B/C/D – Public servants/higher-ups seducing a woman under their position and having sex with her are liable to imprisonment. No such punishment exists for when women seek sexual favours from men. Similarly, there are no protections for men from false and frivolous allegations by women made with malicious intentions.
iii) If a man has sex with a woman after promising marriage, he can't break up with the woman. If he does, according to the laws in India, he's a rapist. Reverse the genders and if a girl does the same, it will be labelled as ‘women empowerment.’
iv) Age of consent: There is no age of consent for males. If a boy of 16 and a same-aged girl have consensual sex, the boy will be charged with rape!
The facts highlighted above speak enough for themselves, and tell us how significant and urgent the need for gender-neutral rape laws in India is.
C) Section 497 (Adultery) and Section 498 (Detaining with criminal intent a married woman)
Section 497 of the IPC says, "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to 5 years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor."
Thus, following points need to be highlighted:
i) Adultery can be committed only by a man, and not by a woman. If a man has sexual intercourse with a married woman, and he does not have the consent of the husband of the woman for the sexual activity, such husband can prosecute the man, and the man only, for adultery. Further, Section 198 of the Code of Criminal Procedure, 1973 explicitly denies a husband the right to charge his wife with adultery and also denies a woman the right to charge her husband with adultery.
ii) This brings us to realize that the law is unfair to both the sexes, as here, the wife is denied of any agency, and she can take no action against her husband, or her husband’s lover, for adultery, although the husband can prosecute his wife’s lover, but not his wife. The consent of the man is given legal sanction as against the consent of the woman who obviously takes equal part in the sexual activity. The rationale behind not punishing the woman seems to be a perspective of seeing the woman as infantile and incapable of making a decision about her sexual behavior, which seems to be a totally absurd concept in the present set of circumstances.
iii) If the husband has an affair with an unmarried (or divorced, or widowed) woman, no one can initiate any action against anyone.
iv) Only a man can be a seducer and women are powerless victims.
Hence, it is established that whether biased against men or women, India’s adultery law is seriously messed up. The Supreme Court of India in 2011 observed that, "The provision (Section 497) is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband. But in terms of the law as it stands, it is evident from a plain reading of the section that only a man can be proceeded against and punished for the offence of adultery."
In Sowmithri Vishnu v. Union of India, Sowmithri, whose lover was prosecuted for adultery, contended that the law was gender biased. Despite being an equal party in the offence, the woman was a ‘victim’- she was exempt from punishment, as a child would be, suggesting that the woman committing adultery is incapable of rational thought and therefore has no agency! This view is re-affirmed by the next code in series, Section 498:
Section-498 – Enticing or taking away or detaining with criminal intent a married woman- “Whoever takes or entices any woman who is and whom he knows or has reasons to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.
Unlike India, adultery is not a crime in most European Union countries, like the UK, the Netherlands, Belgium, Finland and Sweden. Most developed countries hold adultery as a ground for divorce and do not criminalize the act (and this holds for the husband and the wife). Sections 497 and 498 of the IPC hold no relevance in the modern context, because, a) women are themselves responsible for their sexual conduct. b) The very foundation of the law is shaken because of the presumption that a man is always the adulterer, and woman, a hapless victim! When sexual intercourse by its very nature involves two partners, how is it logically fair to hold only one of them responsible? Also, can a woman not be an abettor? To protect her from prosecution altogether is a mockery of Articles 14 and 15 of the Constitution. We firmly believe that adultery should be de-criminalized, and if not, then the suggestion of Justice Malimath Committee to make Section 497 gender-neutral, thereby treating the infidel husband/wife alike, shall ensure great justice to both the sexes.
D) Laws relating to the modesty of a woman:
Section 354 deals with assault or criminal force with the intent to outrage a woman’s modesty. However, there is no such law made to protect the modesty of a man! There are cases where women bully men, and go unprosecuted, because the law of the country does not protect men from such crimes. The situation has become so adverse that if a man accidentally touches a woman in a crowded bus, and the woman protests even slightly, the man shall inevitably invite public outrage by fellow passengers, without even being given a chance to speak for himself!
Via the Criminal Law Amendment Act 2013, four new sub-sections are added to Section 354-
i) Section A: Lists out all the incidences of unwelcome advances, pornography, sexual remarks and favors which hurt the dignity of a woman, making them punishable with rigorous imprisonment and fine. And guess what, men’s dignity holds no value in the eyes of the legislators, because yes, men are always the perpetrators!
ii) Section B: Enlists any attempt to disrobe a woman against her wishes liable to punishment for at least 3 years. Is it impossible to imagine if such a crime can be committed against a man?
iii) Section C: Enlists voyeurism i.e. filming or taking pictures of any woman involved in a private act as a crime with punishment of at least 1 year imprisonment. Yes, nobody thought of protecting men from a similar crime!
iv) Section D: One of the most effective sections, which has criminalized stalking a woman against her will and made it severely punishable with at least 3 years of imprisonment. And men can never be stalked!
The water has literally touched the ceiling, and we urgently need a gender-neutral IPC to redress the aggrieved men in our society, and protect them from further victimization.
Section 509 deals with words, gestures or acts intended to insult the modesty of a woman, and makes the perpetrator punishable with simple imprisonment for a term which may extend to one year, or with fine, or with both. On the face of it, such a legislation is gender-biased, and another instance of the numerous such ‘women safeguarding’ laws.
Other laws, including an array of family laws, bill for protection of women at workplace, alimony law, child custody laws, etc., are also very notable examples of other enactments that are detrimental to men. However, they are outside the scope of this paper, and thus, are not discussed here in detail.
Is gender-neutrality anti-feminism?
The obvious answer is NO! Oxford Dictionary defines ‘feminism’ as advocacy of women rights on the ground of equality of sexes. Yes, EQUALITY OF SEXES. There were times when feminism was required, because women were subjugated due to draconian patriarchal legislations. Today, however, the situation has changed. Women have equal rights, and definitely, more legal privileges.
As seen above, the laws we have, are used as weapon against men and their families. They are used to settle scores and take revenge. Since the basic genesis of feminism is equality, we all would accept the fact that gender-neutrality is the paramount step towards achieving it, and thereby, establishing Article 14 of the Constitution in its true sense. Hence, gender-neutrality is in no way against feminism. It rather seeks to achieve the feminist objective of equality!
Also, is it justified to protect one sex at the cost of the other? Are we really helping women by these pro-women laws? Or are we still pushing them as well as this country backwards by constantly telling them that they are weak and hence need these extra benefits? How is depriving men enabling women? What we need is to spread legal awareness and awareness of women’s rights among the poor and illiterate in villages and help the real sufferers rather than create an imbalanced society!
How to achieve Gender-Neutrality?
“Our job is not to figure out the ‘how’. The ‘how’ will show up out of the commitment and belief in the what.”
Much has been said above regarding how our objective can be achieved with regard to particular crimes. Following are a few more suggestions made for our cause-
1) What we essentially require here is accepting the fact that there can be crimes against men, that men also suffer, and that women can be perpetrators as well! We are really required to change our mindset! The process of socialization in the Indian society is so sexist, that we are somehow unable to accept that men can be violated as well! The kind of education that we provide our children with, should be based on equality, and not on differences!
2) There have been campaigns and movements worldwide for the cause of men. International Men’s Day is celebrated on November 19 every year, from 2007, in response to International Women’s Day (March 8 of every year). We need to set up a dedicated ministry to safeguard men's rights and welfare or set up a men's commission, similar to those for the women. That, would be equality!
3) We, as a society, really need to inculcate Gender-Sensitivity among ourselves, develop a feeling of respect and warmth towards the opposite sex, and understand that in order to uplift one section, we do not have to oppress the other! Wouldn’t it be very hypocritical for us to proclaim EQUALITY as a fundamental right, and then deny the same to men, through such detrimental laws? The concept of ‘Abala Nari’, which is so deeply entrenched in the current scenario, holds no water, as women have travelled a remarkable journey forward, and are indeed, in the present set of circumstances, not lagging behind.
4) Legally, we need to ensure that gender-neutral language is used in our laws, and both the sexes are equally protected. Laws should not be based on the presumption that only one of the sexes is the perpetrator, and the other, a hapless victim! Strong legislations should be laid against false complainants causing unquantifiable miseries to the innocent victims.
5) If we really want to establish a gender-just society, we need to recognize LGBT rights as well, because that will ensure both legal justice, and societal inclusion of all communities.
6) Lastly, we need to realize that crime has no gender, and everyone should be deterred from committing it. It inflicts innumerable sufferings upon the victim, and he deserves justice!
“Justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.”
If we really want justice to prevail, if we really want people to have faith in the law, if we really want to proclaim equality and dignity, if we really want to rise above our shallow prejudices, if we really want humanity to supersede, we must want gender-neutrality as the solution!
“One day our descendants will think it incredible that we paid so much attention to things like the amount of melanin in our skin or the shape of our eyes or our gender instead of the unique identities of each of us as complex human beings.”
# Phumzile Mlambo-Ngucka
# A comment made by the Minister of Women and Child Development, Maneka Gandhi
# In Crl.A. no. 589 of 2003, Supreme Court of India
# According to statistics obtained from the National Crime Records Bureau.
# Syed Makhdoom committed suicide in 2009 because of the agonies he underwent due to a false complaint filed by his wife under S. 498A.
# JT 2005(6) 266
# Remarks of a feminist called Madukwe, reported in Vanguard, a Nigerian newspaper in 2013
# Barlow, Sakheim and Beck, 1983)
# Conducted by Jai Vipra, 2013 (Centre for Civil Society)
# 1985 AIR 1618
# Justice Malimath Committee was tasked with suggesting reforms for the criminal justice system in 2003.
# Jack Canfield
# Theodore Roosevelt
# Franklin Thomas
|This article has been Awarded Certificate of Excellence for Original Legal Research work by our Penal of Judges|
ISBN No: 978-81-928510-1-3
Author Bio: Avrati Srivastava - V-III, B.L.S. LL.B., Government Law College, Mumbai
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