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Male, Female, Or Other: How Does It Affect Justice?

Rape is the fourth most common crime against women in India.[1] India lodged average 86 rapes daily, 49 offences against women per hour in 2021 according to NCRB data. [2] There have been many rape cases widely covered by the media that would give anyone chills.

The Nirbhaya case, 2019 Hyderabad Rape Case, Unnao Rape Case, Hathras Gang Rape Case, Shakti Mills Rape Case
, are some of the many cases that have shaken our country over the years. According to the 2018 National Family Health Survey by the Union Health Ministry, 27 per cent of surveyed women, i.e., about every fourth woman, faced domestic violence since the age of 15 years. The case of NRI Mandeep Kaur would frighten any human to their bones.

With the concept of patriarchy firmly in place in India, women are at a disadvantage. Socially, mentally, physically, women have been subjected to multiple crimes, and this flows into the modern society as well with women being forced into submission in every facet of their lives. The career trajectory, educational opportunities, social freedom and healthcare of a woman varies greatly from her male counterpart.

A large part of the life of a woman is determined by "log kya kahenge". What the society thinks of her modesty, her life, has a significant effect on what she is allowed to do and how she is allowed to live.

Where does gender neutrality of laws fit into this dynamic? Even though it is true that women have faced, and keep facing, many atrocities over the years, it's also true that we can't assume the one size fits all approach. There have been multiple cases of false accusations, and misuse of the law, by women.

Also, the fact that a man can also be subject to domestic crime should not be ignored. We cannot blindly assign women the role of the victims and men the role of the perpetrators. The law, as envisaged by the founding fathers, needs to be impartial even in light of patriarchy to keep up with the rapidly changing mindsets of the people.

Why Do The Laws Tilt In Favour Of Women?

The laws, as they are right now, are tilted in the favour of women. And there is a reason for that, or there was, at some point in time. Most of the reasons are largely based on conceptions of men that have evolved over time but the laws have remained unchanged.

The primary reason is patriarchy. It believes that men are inherently more mentally resilient and stronger than women. That contains an assumption that they can't be forced to engage in sexual activity, be mentally abused, or be subject to any other kind of violence by their partners, or any other person in general.

Although it might be true for a large part of the population (thus giving rise to the notion in the first place), it's imperative to remember that not all humans can be measured by the same scale. Forcing the male population to live up to the image created for them makes it even harder for them to speak against the abuse. In domestic violence cases, men may be too afraid to speak out for fear of being shamed.

In rape laws in particular, since the act of sexual intercourse is one of penile penetration in the vagina, it was assumed that the force can be only on the side of the man, rather than from the woman as well. The semantics of sexual intercourse between a male and female give the idea that the female cannot abuse the male into having sexual intercourse with her.

Another presumption while making rape laws was that males inherently crave for physical intimacy while females might not always reciprocate the desire.[3] In rape cases, it is very difficult for the men to speak up for fear of being emasculated or lose their self-worth. Both these presumptions have lost their validity over time.

However, Indian law is still reluctant to change its position, because as recent as June 2022, legal experts still believe that the offender needs to be in a position of "strength" and the victim should be "weak". The distinction between mental and physical strength has not been made clear, even today.

Which Laws Tilt In Favour Of Women?

The official website of National Commission for Women lists numerous legislations that are women-specific. They include:
  • The Immoral Traffic (Prevention) Act, 1956
  • The Dowry Prohibition Act, 1961 (Amended in 1986)
  • The Commission of Sati (Prevention) Act, 1987
  • Protection of Women from Domestic Violence Act, 2005
  • The Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013
  • The Criminal Law (Amendment) Act, 2013
  • The Indecent Representation of Women (Prohibition) Act, 1986

Clearly, Acts as recent as 2013 have been women specific. What is the rationale behind criminalising several offences against women, like stalking and non-penile penetration, but leaving other genders out of the scope of the 2013 amendment to criminal laws? The clear bias towards women in cases of dowry, domestic violence, sexual harassment in workplaces, stalking, among others is glaringly visible.

There is a separate section listed as "Women-related legislation" on the NCW website and lists the following:
  • Indian Penal Code, 1860
  • Indian Evidence Act, 1872
It is concerning to see that laws as wide as the IPC and Evidence laws are considered to be women related. The legislations that are supposed to be gender neutral and mention "any person" in maximum sections are now increasingly becoming diluted by the need to protect women specifically.

A major portion of the IPC pertaining to crimes against women, refer only to males as criminals. The lacunae left by not including all genders, both as victims and as perpetrators, in such laws is a matter of utmost concern. Article 15(3) of the Indian Constitution allows for the state to make special provisions for women and children, making all the women-specific legislations and provisions legal. However, that cannot allow the government to blatantly ignore the holes in our laws, becoming increasingly fathomless with the change in times.

Real Life Examples Of The Scales Tipping To The Other Side
Multiple examples have cropped up over the years where males have been subject to crime, or a false accusation of committing a crime against a woman.

The Karan Oberoi 'rape' case is a famous example of a woman staging an assault on herself and blaming a man for it. Oberoi subsequently became the face for the "#mentoo" movement, which started in October 2018.

It should be understood that it's not only females that have to be the aggressor for a male to be abused. Numerous cases have been noted, both national and international, where the perpetrator was a male and the victim was also a male. The most chilling of them all (and even the most recent) is the case of Reynhard Sinaga, who raped dozens of men in Manchester. He was convicted of 159 offences and was alleged to have targeted almost 200 men.[4]

Sinaga had been sentenced to a minimum of 40 years in jail. However, the case would've been wildly different, were it to take place in India. The public statement of one of his victims, Daniel, is proof of just how difficult it is for men to speak up against crimes like rape.[5]

In the Vijay Nair case, the founder of OML, Nair was continually stalked and harassed online. The ultimate charge on the perpetrator could not be under section 354D of the IPC ´┐Ż as it only applies if the victim is a woman.[6] Although he got recourse, it was not for stalking, rather for identity theft, cheating, and criminal intimidation. This method of remedy leaves quite a lot of things to be desired.

These examples do not cover the even wider scope of transgender crimes, where the perpetrator can be of any gender. The scope of the perpetrator has been widened in several women-related legislations, but the victim is still one: the female gender.

Official Recommendations
Numerous PILs have been rejected by the High Courts and the Supreme Court to make rape laws gender neutral and include men and other genders in its ambit.

Although there have been many recommendations relating to gender neutrality of laws, the most significant of them is the Justice J.S. Verma Committee. It was constituted following the horrific Nirbhaya rape case, but the suggestions of the committee were not entirely women specific. The Verma Committee focused on making laws gender neutral in a way that had never been considered before.

Not only did it recommend considering men as a victim, it also took the LGBTQIA+ community into account. The recommendations of the committee were, and still are, considered to be revolutionary and quite necessary with the way the law stands as of now.[7]

The key recommendation of the committee relating to gender neutrality was to expand the scope of criminal law to include men and transgenders by replacing the words "man" and "woman" to "any person". The suggestion was dismissed due to concerns that it would lead to an influx of cases that the courts would not be able to handle. Female rights groups also raised concerns that this could be used as a tool against women and could be used to suppress and threaten them further by threat of a false criminal case against them.

India has been making significant progress in terms of recognizing and providing legal rights to the third gender. In 2014, in a landmark judgement by the Supreme Court of India of National Legal Services Authority v. Union of India, transgenders and all other genders (other than male and female) were legally recognized and it was acknowledged that they have all the fundamental rights as does any other citizen of India. The judgement consequently gave rise to the Transgender Persons (Protection of Rights) Bill, 2016, in the Lok Sabha.

Navtej Singh Johar & Ors v. Union of India, 2018 is another critical judgement which decriminalized all consensual intercourse between adults, which means that homosexual sex is no longer a criminal act.

It is significant to note that the Centre has not been forthcoming with suggestions to the benefit of the third gender. The two milestones in legal remedies to transgenders have been by the court, rather than by the government. The judgements have been fundamental in determining the legal identity of the third genders but they have not even grazed their right to seek redress in light of criminal wrong.

The Constitution of India enshrined equality and fair treatment to all citizens of India regardless of gender, caste, religion, race, or place of birth. Although it is legal to make specific laws for women and children, laws as broad as rape, stalking, and domestic violence cannot be justified to be singularly female-focused. These are some crimes that can happen against any person regardless of gender and they must be treated as such.

All the arguments that stand against making laws gender neutral can be used from the other end as well. Refraining from expanding the extent of the definition of a "victim" in certain laws is not preventing cruelty on women. It is not protecting them from the atrocities of the society. It gives them recourse, but such recourse should be available to the citizens of our country, irrespective of gender.

Our law considers any accused innocent until proven guilty. That is because the courts do not wish to put even one innocent man behind bars. The suffering of one innocent is greater than the freedom of several guilty minds. Why does the same not apply to cases in which the innocent is subject to crime? How would such an innocent find justice when the law does not provide direct relief?

The reasons that stood to make the laws women-specific are no longer pressing issues now. The legal documents of our country exist to provide justice and recourse when there is a breach of the human balance. Articles 14 and 21 of our Constitution are embodiments of natural justice.

Criminal arbitrary action needs to be punished irrespective of gender. The law needs to evolve with the changing times and identities of the people. Laws all around the globe are accommodating people of all genders. It is time that India matches the expectations of its people, constitution, and the world.

  1. Chapter 5: Crime against women, Crime in India 2012 Statistics,
  2. The Hindu, August 31, 2022
  3. Owen Jones, Male rape survivors suffer in silence. We need to help them talk,
  4. Reynhard Sinaga: victim of UK's most prolific rapist speaks out,
  5. Ibid
  6. How a Mumbai entrepreneur unmasked his vicious cyberstalker and lived to tell the tale,
  7. J.S. Verma Committee Report,

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