Gender Neutrality and the Indian Legal Framework
Author:- Shubham Sharma student at Vivekananda Institute of Professional Studies
The Indian Constitution enshrines numerous fundamental rights to individuals irrespective of their distinctions. Article 14 states that the state shall not deny the right of equality before the law and equal protection of the laws within the territory of India. The document has played a significant role in improving the socio economic conditions of vulnerable sections of society including women by incorporating special provisions which ensure their welfare. While it can be said that the constitutional provisions maintain a policy of non-discrimination in enabling certain fundamental freedoms, other statutory codes and texts still struggle in achieving their goals of gender neutrality.
The concept of gender neutrality is based on the belief that individuals should be treated without bias or discrimination on the basis of their gender. The notion acts as a counter to gender inequality by challenging prevailing gender norms and stereotypes. Gender neutrality also indicates that legal institutions, codes and their parlance should not assign roles or distinguish on the basis of sex or gender to prevent discrimination.
In India, a myriad of legal provisions safeguard women's rights, granting them the prerogative to lodge grievances against any violators. While both genders are entitled to the same foundational rights, the articulation of men's rights is not as pronounced as that for women. There's a pressing need for gender neutrality in rape legislation, given that only women have been recognized as rape victims thus far. Most IPC statutes addressing offenses against women singularly designate men as the offenders.
The Indian Penal Code, enacted in 1860, requires urgent changes as it continues to grapple with its colonial legacy. This is reflected in the provisions criminalising different forms of sexual assault. Section 375 and Section 376 do not enable a man to file a First Information Report. The former section also fails to recognise men as victims of rape. In 1996, the Delhi High Court, addressing the petition Smt. Sudesh Jhaku v. KCJ, stated that male victims of sexual assault should receive the same protection as female victims. Moreover, women who commit sexual assault against men or other women should be subject to the same legal consequences as typical perpetrators of rape. The court suggested that the Law Commission should deliberate on this issue. Cruelty under Section 498A also does not foresee the possibility of women committing the said criminal act against her husband. The Domestic Violence Act of 2005 was created with the intent to protect women from physical, emotional, verbal, economic, and sexual abuse by their partners or family members. The Act does not cover instances of such harassment suffered by men nor does it offer them similar protection. It is essential to understand that while Section 377, which previously banned consensual same-sex activities, has been decriminalized, non-consensual acts of the same nature remain illegal.
The Indian legal system requires a major overhaul to bring itself on par with existing legal framework prevalent across the world. Numerous PILs have been filed in different High Courts and the Supreme Court in an effort to make rape legislation gender-neutral. In 2017, Sanjiv Kumar questioned in the Delhi High Court the legitimacy of current rape statutes that solely treat males as perpetrators. It was said that the situation has changed and that society must now go "beyond the male-on-female paradigm." In its plea, Centre said that the rules pertaining to rape should not be changed, as certain provisions are required to combat the escalating crime against women. In conclusion, the judiciary has an active responsibility to provide for a just and fair criminal justice system in accordance with the ideals set by the fundamental rights and Directive Principles State Policy.
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