Gender Neutrality in Laws: The Need of the Hour.

“Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress”, said the great visionary Martin Luther King Jr. Law, in very generic terms refers to a system of rules that are enforced through social institutions to govern behaviour. More specifically, law is a system of principles and rules of human conduct. It orders and permits, allows and forbids. Its provisions generally relate not to solitary or singular cases, but to what passes in the ordinary course of affairs.

In India, there are or have been over 3940 Acts in existence, ranging from issues of national import like terrorism to centre-state relations and acts pertaining to money exchange, protection of intellectual property to acts which are of supreme importance. Also those associated with rape, domestic violence, sexual abuse, harassment et al, have always been a bone of contention for multiple reasons.

The provisions for these pertain primarily to women as it is a common belief that it is women who are the sole entities agonised by such actions of rape, domestic violence and harassment, to name a few. It is only women against whom such crimes and such inhumanity is perpetrated and that makes them the be-all and end-all of such laws. But is this belief really believable after all? Or is it just a widely-accepted misapprehension disguised as a belief? The provisions for criminalisation of rape in the Indian Penal Code, for the most part, refer to women and children as the aggrieved and men as the perpetrators of such crimes. The laws go up to the extent of explicitly mentioning the terms “vagina” and “anus or urethra of a child” and “penetration of these by a man” as a punishable offence. Another example of such an act is the Domestic Violence Act, which holds women as being the victimised class and men as the victimisers, where ‘person’ is defined as ‘women’.

Conceded, that women are largely affected by said acts and undergo such torment more than men do. But, does excluding men from the ambit of such laws altogether reflect well on the prudent legislators of our nation? Does favouring one sex in a legislation not make it very narrow in its scope and approach? This approach is problematic as it tends to convey the hypocrisy of a nation, where we boast of development on one hand, and on the other, refuse to recognise the rights of a large proportion of the population only because they possess the Y chromosome pairing, instead of X.

 The issue with such laws is not singular but multifold. At the very basic level, what such laws explicitly seem to convey is that, men are the sole perpetrators of such violence and heinousness. On a secondary level, it conveys the idea that men can never be the tormented class which further helps the idea of patriarchy that men are all-powerful, mighty beings seep deeper. And these are only the direct consequences. There is a plethora of ill-outcomes that arise out of or are indirectly associated with the aforementioned effects. These include the thought that women are incapable of aggression, that a man is not capable or rather should not be capable of complaining against rape, domestic violence or any other issues. It defines gender roles whereby men have to be strong, and a man who isn't, is implicitly denied protection by law. This approach refuses to recognize the nature of the act, rather recognizing the gender of the offender, which shows great ignorance of these acts.

By putting such laws into play, the first ill-consequence that emerges is ‘conditioning’ or ‘pyschosis’. What this means, is that that it lets the idea that men can’t be raped perpetuate. In turn, this conditions men to the same idea and works in the manner of a psychosis or instilling of the wrong belief that they tend to uphold and as a consequence, fail to see themselves as victims. This conditioning further adds fuel to the fire that patriarchy is, by conditioning men to the idea of some kind of superiority. What is even more flabbergasting is that ‘sodomy’ is viewed as an offence but not the idea that “men can be raped”. Oftentimes, then, because of such prevailing beliefs, men even shy away from reporting instances of sexual abuse altogether because it is such a stigma, such a taboo that men can be raped. What’s ironical here is that even though there’s no authentic statistic suggesting the percentage of male victims (though roughly, keeping in mind the taboo and unreported cases as a consequence, suggest that approximately 18% men get raped), looking at child abuse statistics conducted by the Centre For Civil Society, Delhi in 2007 suggest a larger number of male child victims (57.3%) as opposed to female child victims (42.7%).

Secondly, it typecasts and stereotypes men as perpetrators of sexual violence, absolutely ignoring the number of female sexual abusers or rapists, however small in number, thus making the fairer sex get a fairer deal where there is no scope for their conviction.

Thirdly, it provides a wide scope for misuse where women often take advantage of such lopsided provisions and get away scott-free, while men, who may not have been wrongdoers, undergo victimisation at the hands of the law. In fact, on May 9, a group of affected men in the Telangana region undertook a campaign for scraping off Section 498A. Speaks volumes about the misuse of lopsided laws, doesn’t it?

Fourthly, the support that such biased legislations garner is much less and is largely restricted to only one of the sexes. Consequently, this sets a bad precedent for progressive future laws, such as criminalisation of marital rape which gets rejected on the grounds of bias and consequent misuse.

Lastly, but very importantly, it ignores, not only men from the ambit of the victimised class but also the third gender. This exclusion does not reflect well on representation in laws where laws are supposed to treat all criminals of similar crimes equally.

Evidently enough, all these unfavourable remarks hint at the need for gender-neutral laws. It is the duty of the State that all its citizens are put on the same pedestal and are dealt with, in a similar manner for violating the principles of law. It is, equally, the duty of the state to see to it that every person who undergoes similar torment or grievance, is redressed in a similar manner, irrespective of their sex.

Such neutrality in law is very vital to ensure that the law is widely accepted. A neutral law would garner much respect, obedience and support as opposed to a lopsided law. Furthermore, it would greatly undermine the scope for misuse as only the real wrongdoer would be convicted and held guilty, irrespective of their gender. Cases of false framing and perjured charges could be largely done away with, as there would be no presumption of guilt in law, contrary to status quo and matters would be decided solely on facts and law. Another merit would be diluting the stigma that exists in cases of male rape or abuse. This would further pave the way for progressive legislations, say, for instance, a gender-neutral criminalisation of marital rape. All these factors thus suggest the need for gender-neutrality in laws in India.

Law is expected to be the guardian of people in a state. Law is meant to ensure order and proper conduct. Law must not discriminate among those who have surrendered their rights to it and view it as the supreme agency charged with the protection of their rights in the state. Law must, therefore, to the fullest extent possible, be impartial and must take into consideration all the citizens and not a singular class. The impulse to view the rapes, sexual violence and harassment as narratives, as exclusively that of a man violating a woman does an injustice to those persons who own rape stories. Making a law gender neutral should not be seen as yet 'another tool' with which to attack women. Instead it should be viewed as a tool to protect male victims and those of the third gender and encourage them to come forward and seek justice under India's legal system. It is only when the law protects all and treats all equally that it succeeds in its purpose.

-Shreya Shukla.

A The InfoMission Project Writer.