By Anmol Mathur
The Constitution of India guarantees all persons the right to personal life and liberty, equal protection of laws and prohibits any discrimination based on sex. The Constitution is not simply a long, celebrated, big-book of ideas on democracy and civil society, but is a tool for social change in the coming centuries. The 21st century India stands with the change, and recognizes its issues loud and clear. The existing patterns of gender stereotypes, though have been subdued, but exist to still function, rooted deeply in the society. Amidst these specific gender norms, recent due recognition was given to the transgender community acknowledging their rightful claims under the Constitution. Gender identities in India have always been a huge deal in terms of both the functioning of the society as well as its laws. Gender-specific laws have been a part of Indian legislations since time immemorial. But the best thing about law is its dynamics. Given the changing scenarios and challenges, gender-neutrality in law is the road to social change, that the Indian Society needs to unbind itself from the shackles of the stereotypes.
Gender-Neutrality stands for the annihilation of the social structures which distinguish and ascertain specific roles based on a person’s sex or gender.[i] On this premise, a bill was moved by KTS Tulsi, a senior lawyer and Parliamentarian in the Rajya Sabha on July 2019, to make sexual offences gender-neutral in India.
The Main Ideas Behind the Bill
The objective is to extend the protections of the Indian Penal Code, 1860, Code of Criminal Procedure, 1973 and Indian Evidence Act, 1872 in cases of sexual offences to all genders, and to omit any discrimination. In order to effectuate the same, the words “any man” and “any woman” referred to under various sections of the Indian Penal Code, 1860, likewise Sections 354A, 354B, 354C, 354D, 375 and 376 which relate to sexual offences against women particularly, are proposed to be changed to read as “any person”.[ii] It also puts into perspective the recognition given by the Supreme Court to the transgender communities and seeks to include them within the ambits of sexual offence laws as well.
It calls for the insertion of Section 8A to the Indian Penal Code, 1860 which defines ‘modesty’, in pursuance of Section 354 of the Indian Penal Code. Further, the definitions under Section 10 of the Indian Penal Code, 1860 should be made inclusive of man, women and transgender. The bill clearly seeks to extend the protection of laws to all human beings and identifies the offences of sexual nature against both men and transgender. It proposes the insertion of a new section 375A that is to deal specifically with “sexual assault” defined as “intentionally touches the genitals, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person, without the other person’s consent except where such touching is carried out for proper hygienic or medical purposes”. The insertion of a specific section for sexual assault aims at increasing the scope of the acts which are sexually violative in nature and hence brings them within the ambit of legal action.
The intention of the bill is to recognize and empathise with transgender as well as male victims of rape and sexual assault. It is very imperative to understand that if a problem is not being talked about in the mainstream, does not mean it doesn’t exist. Furthermore, such gender-neutrality in no way seeks to undermine the experience of women, rather longs to extend the protection to victims of similar assault and grief.
Resistance and Challenges to Gender-Neutral Sexual Offences Laws
Indian society is parallelized by the gender stereotypes that have been prevailing for a long time. The same is reflected in the statement of the Ministry of Home Affairs which absolutely shunned the need for gender-neutral rape laws, quoting the need to protect the rampant increase in acts of sexual violence against women, thus intending to keep intact and gender-specific laws for rape and sexual offence.[iii] It is necessary to point out that the recommendations of The Law Commission of India in its 172nd Report, which after the corollary to Sakshi v Union of India[iv], had put forth a need to introduce gender-neutral sexual offence laws and to increase the ambit of Section 375 of the Indian Penal Code. Such a recommendation was lost in the void created by the uproar of the Nirbhaya Case, that added a new comprehensive set of laws for women protection. Keeping in mind the dynamics of Indian Criminal Law and its progressive nature, Justice Verma Committee in 2013 again expressed the need for gender-neutral laws governing sexual offences.
In addition to that, it is very necessary to acknowledge the grey area in the Indian Penal Code, with regard to the acts of sexual violence against men and transgender. There is no legal recourse available to other genders above the age of 18 years, as Protection of Children from Sexual Offences Act, 2012 only covers acts of sexual violence against persons below the age of 18 years. No undermining the fact that women in India face sexual assault on various occasions, and all those laws made for the upliftment of women are well within the sphere of equality and its required differentia. Nevertheless, these laws were to act as a catalyst of an equal society, and with such a progressive evolution of law, the judiciary has recognized the complexities of gender and has imbibed the same in the socio-legal framework. Gender-specific laws contribute to the existing gender stereotypes and promote regressive attitudes.
The call for gender-neutral laws is often seen as a criticism of feminism. Gender-neutral laws recognize male and transgender members of the society as victims and do not rob the law or society of any sensitivity towards female victims. It simply recognizes the fact that other genders may also fall prey to such inhuman crimes.[v] It is undeniable that the ratio of rape and other sexual offences on females is more in comparison to other genders. However, it would be a social failure if we deny the sheer existence of rapes and sexual offences against the other genders and classify them as unfortunate occurrences and not involve them within the meaning of the law. This would fail our Criminal Law System in totality as it refuses to empathise with victims other than females. Social recognition of such a reality would contribute to the legal assistance of victims in seeking redress. [vi]
Over the years criminal laws in India have time and again been amended to meet the need of the hour. The amendments within the ambit of sexual offences against women after the onset of the Nirbhaya Case have contributed tremendously towards the safety of women. It recognized various acts which weren’t offences earlier, thus giving scope to every victim to access justice. Putting in all into perspective, the Criminal Law (Amendment) Bill, 2019 aims to make such progress, when its calls for a gender-neutral section that punishes any form of sexual assault. It is to be noted that the Indian Society has progressed a lot in the 21st century. It not only recognized the third gender to exist, but also identified them as a part of the Indian Society. After such a long fight for merely being recognized, it is but a responsibility of the Indian justice system to protect their rights as well. Making laws gender-neutral will only help more victims seek help and justice, and will in no way undermine the experiences of one gender.
[The author is a third-year law student at Symbiosis Law School, Noida.]
[i] Udry, J. Richard (November 1994). The Nature of Gender. Archived from the original (PDF) on 2 September 2017. Retrieved 14 March 2020. “The Nature of Gender” (PDF). Demography. 31 (4): 561 573. doi:10.2307/2061790. JSTOR 2061790. PMID 7890091.
[ii] Mathur, A. (2019). Bill to make sexual crimes gender neutral introduced in Parliament. Retrieved 14 March 2020 https://www.google.com/amp/s/www.indiatoday.in/amp/india/story/bill-to-make-sexual-crimes-gender-neutral-introduced-in-parliament-1568504-2019-07-13
[iii] Pundir, P. (2019). Indian Rape Laws Cannot Be Gender-Neutral, Says Central Government. Retrieved 14 March 2020 https://www.google.com/amp/s/www.vice.com/amp/en_in/article/mb8dey/rape-laws-in-india-cannot-be-gender-neutral-says-ministry-of-home-affairs
[iv] AIR 2004 SC 3566
[v] Talwar, S. (2019). A Recent Bill In Parliament Tried To Make Sexual Crimes Gender Neutral. What Is Your Opinion?. Retrieved 14 March 2020. https://www.womensweb.in/2019/09/gender-neutrality-gender-neutral-laws-needed-sexual-crimes-sept19wk4sr/
[vi] UKEssays. November 2018. A Gender Neutral Law Of Rape Criminology Essay. [online] [Accessed 14 March 2020] https://www.ukessays.com/essays/criminology/a-gender-neutral-law-of-rape-criminology-essay.php?vref=1