GENDER BIASED LAWS IN THE FEMINIST INDIA

GENDER BIASED LAWS IN THE FEMINIST INDIA

INTRODUCTION

“I believe that no country ever stood so much in need of a code as India and I also believe that there never was a country in which the want  might be so easily supplied , Our principle is simply this — uniformity when you can have it ; diversity when you must have it; but in all cases certainty.”

                                                                                                                         —Lord Macaulay; 1833; House of Common; London

In the India of 2020 where feminists have come on the road fighting for equality, somewhere in a corner, social workers are still waiting for a miracle that will make rape a gender-neutral crime. I am grateful to patriarchy for making this society the way it is. The worst it could do was that the powerful cannot be subjected to abuse. And the wonderful outcome is a simple orthodox question – how can men be raped?

When you kill a person, you kill him once and he gets over it that very second. But when a person is subject to sexual abuse or rape, he loses everything he has. His career is over, mountain of trust demolishes and his societal pride dies. And to add more salt and pepper, the situation becomes even worse when anybody who is not a woman is sexually abused.

The expansion of definition of rape to include non-vaginal acts of penetration brought hope that soon rape will not be a feminine crime. However, the said definition still connotes a gender specific notion of rape based on orthodox beliefs and pre-determined characterisation of perpetrator, based on their gender.

Section 375 of the Indian Penal Code has been very sexist in stating, rape as something that only a man can do to a woman. It has completely ignored the sexual assault that a woman can do to a man or for that matter any gender. There is absolutely no scope for adult male victims, taking away all their rights to get justice if any sexual assault is done to them. The child survivors of both sexes are covered by the Protection of Children from Sexual Offences (POCSO) Act 2012.Current rape laws leave out a large drape of male victims, who cannot come forward for fear of stigma and more importantly, because of lack legal recourse. 

HUMAN RIGHTS AND GENDER NEUTRALITY

GENDER BIASED LAWS IN THE FEMINIST INDIA

An important instrument functioning towards safeguarding human life and related laws in the entire world is the Universal Declaration of Human Rights (UDHR). It has been recognized by numerous nations which makes it a binding customary international law. The Preamble of UDHR per se enunciates “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world”. Article 2 of UDHR asserts that everyone is entitled to all freedoms and rights which are enshrined in the declaration and that too, without distinction on any ground including sex. Article 7 also states that every person is equal before the law and is entitled to equal protection of the law without any differentiation. Article 8 being most important in our context, stipulates that everyone has an exclusive right to avail effective remedy from any national tribunal in case any of his fundamental rights guaranteed by the constitution or by any law is violated.

The Constitution of India has also been very vocal on the aforesaid principles.  Article 14, Article 21 and the preamble of Indian constitution gave Right to equal protection of law and right to life and personal liberty to every human being irrespective of the gender of a person.

In the case of Bodhisattwa v. Shubhra Chakraborty and Narendra Kumar v. State (NCT of India), it was held that only female can be victim of rape,completely ignoring the fact that what can happen if a man is subjected to sexual abuse.

NO LEGISLATION TO PUNISH CONVICTS OF MALE RAPE

GENDER BIASED LAWS IN THE FEMINIST INDIA

Gender specific laws to females turn their ears dumb when it comes to the rights of other genders. If an individual who is not a male is ever sexually harassed by another individual then there is no law towards it. This is because it is believed that only women can be a victim of sexual offences and not men. But in situation now, it is not the same as it was earlier. Men are also the victim of many offences but are not given any rights because of gender specific laws towards women. Apart from this, legal recognition is given to other genders, which is a milestone revolution. For the upliftment of these sections of the society, it is very fundamental for us to advocate the idea of gender-neutral sex laws.

GENDER NEUTRALITY OF POCSO ACT

The most delicately knit fabric of POCSO Act, is very efficient is addressing issues of assault against the children, irrespective of their sexuality. It addresses comprehensive spectrum of criminal sexual offences like various forms of penetrative offences, non touch abuse, stalking, exhibitionism, pornography, etc. Through an amendment dated 19th July 2019, the legislature has made attempts to broaden the scope of the POCSO Act, 2012, making it more gender neutral. The amendments will enable gender-neutral application of death penalty against aggravated penetrative sexual assault against both men and women. The POCSO Act, 2012 is gender-neutral concerning children’s sexual assault cases; adult societystill being in hope of gender-neutral rape legislation!

SOCIO-LEGAL ASPECT

A simplest fact is that cannot be denied is that you cannot get rid of your society at any stage. We have made things normal and tried to end patriarchy on pen and paper. However, a simple fact that cannot be ignored is that we have failed in changing the mindset of the people. What is more astonishing, is a simple fact that the most educated and reputed judges have been under the clutches of this. In effect to Justice Verma’s report which specifically dealt with amendments in criminal procedure in sexual matters, a special committee was set to examine the forth situation of sexual offences. The committee came to a conclusion that rape and sexual assault are not merely crimes of passion but an expression of power. Rape should be retained as a separate offence and it should not be limited to penetration of vagina, mouth or anus. Any non-consensual penetration of sexual nature should be included in the definition of rape.

CRITICAL ANALYSIS

“I am a survivor of child sexual abuse. I was raped by a male relative for 11 long years from the age of seven to 18”, said Harish Iyer, who is an equal rights activist who was named as one of the most influential gay men in the world by The Guardian newspaper. His revelations are in stark contrast to our national debate about rape, where males are always the perpetrators and never the victims.

Our society is almost unwavering of the fact that “men cannot be raped”, men can obviously not be sexually assaulted by women. Sexual violence against men has still not been recognized into our society. And here disbelief replaces empathy. In cases where somebody who looks like a men is raped, he is termed as ‘unmanly’ and the worst happens when the society mocks at him alleging that he must have enjoyed it. In the absence of any social acceptance or legal provisions, these victims are forced to stay mum. Their pathos going unreported!

There can be many effects on mental health of the male if not recognized that they are the victim of rape. And that can result in various wrong steps taken by them if not made an offence.

  • Physical effects-This can result in emotional or physical trauma.
  • Long-term effects- Pressure to prove his manhood physically and sexually (becoming stronger and engaging in dangerous or violent behavior; having multiple female sexual partners),Confusion over gender and sexual identity, Sense of being an inadequate man. Sense of lost power, control, and confidence to his manhood.
  • Suicide possibility

A ray of hope however peeps from the case of SudheshJhaku v. K.C Jhaku in which the hon’ble court for the first time ever recognized the idea that men can also be sexually assaulted. Courts gave time and again advocated the idea of gender-neutral laws in several landmark cases but only for the upliftment of women as they are the ones being dominated.

CONCLUSIONS AND SUGGESTIONS

In the words of Phil Rumne

Gender-neutral reforms are not designed to make gender irrelevant in our understanding of sexual violence; in fact, gender is central to any understanding of how and why sexual violence occurs. What is clear, however, is that while females are the main victims of sexual violence and males the main perpetrators, one still has to consider how sexual assaults beyond the male-on-female paradigm are to be labeled by the criminal law.

The law doesn’t aim to completely desexualize the section 375 of IPC. BT, it seeks to increase the scope of victims of rape. It focuses to do away the traditional male-female standard attached to rape. It has recognized the patriarchy of Indian society, giving powers to men use it against women which over the time has become so much that it has projected the idea that men are the dominant ones and hence they cannot be dominated. This shouldn’t be a ground of limiting the bringing of gender-neutral rape laws as it would deprive the male community to avail their basic human rights. State must be observant enough to form an effective system to address all such issues in the best way.

STATUTES REFERRED

  • The constitution of India, 1950
  • POCSO Act, 2013
  • Indian Penal Code, 1960
  • Universal declaration of Human Rights

REFERENCES

CASE LAWS

About the author

Anushka Gupta

Anushka Gupta is a second year BBA-LLB student at Chanakya National Law University Patna.