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The Desideratum of Gender Neutral Laws in India

Section. 375 and Section.376 of the Indian Penal Code talks about conviction of a man for the offense of rape against a woman. Also, there are many laws other than rape which are gender specific, such as, voyeurism and sexual harassment where the perpetrator is a man and the victim is always a woman.[1]

The Indian legal system is based on the assumption that rape is something that happens to a female where the perpetrator is always a male of the society. However, an increased awareness in the society shows that the reason for sexual harassment or rape may not be just the fulfilment of the sexual desires but also the assertion of the dominance while declaring the other person to be submissive or inferior to the prior.

But, if so, then the main reason could be to assert dominance in the case of class, creed, religion or any other social background, which in turn would mean that this is not entirely gender based. Hence, any form of sexual harassment or rape could happen to both the males and the females of a society.

While we assume that there are two genders i.e., the male and the female, we fail to overlook the community of the transgenders which includes the hijras and the kothisand the communities of the intersex where the organs in the body of a person are ambiguous. The current laws are just discriminatory in nature where it classifies a single part of the society while overlooking the other parts of the society.

It has been recommended by the Law Commission of India in their 172nd report that, the laws regarding rape must be made gender-neutral.[2] A study which was conducted by the People’s Union for Civil Liberties in 2003 had stated that there was widespread violations of the human rights against the transgender community of India.

The Rape Law And Its History

What one needs to fathom, in the present scenario is that one must understand the social implications, the society in general and the repercussions before any conclusive proof of the positive outcome of the changes in law. Therefore, the history of the changes in the society is what one needs to decipher in order to comment on the present challenges.

It had been deduced that historically speaking, the Indian women’s agenda has revolved around the changes in the rape law.[3] The broadening of the definition of rape, has been a struggle for the women for a long time.

[4] The Mathura Rape case, was one of the finest decisions in the field of rape laws which was the reason why so many changes had been made in the criminal laws in India. It had been termed as one of the landmark cases creating history in the rights of women in India. [5]

The Supreme Court had held that, the young lady who had been assaulted by three police officers, had submitted and given her consent to the sex as there were no wounds of obstruction found on her body. It was held that nonappearance of wounds suggested assent. After this notorious case, four law instructors composed an Open Letter to the Chief Justice of India reprimanding the case.[6]This case started off an interest moving the weight of verification concerning to the blamed, when the arraignment had released its weight of demonstrating sexual intercourse[7]. Another interest made by activists was to hold camera procedures and non-disclosure of the names of the rape victims in the media. [8]

Another proposal was to make the previous sexual encounters of the victim irrelevant during a trial so as to not dissuade from the offender’s act of assault in the case.[9] However, the landmark case which bought about changes were, the Delhi gang rape case which led to the formation of the Criminal Law Amendment Act, 2013.

Meaning of The Word Gender-Neutrality

The phrase gender neutrality is ambiguous and not completely defined anywhere. So, what comes under the ambit of gender-neutrality?

To understand the above question, we need to understand the meaning of the term, gender. The term gender has been defined in the common sense as either male or female. However, this definition, fails to consider the aspects of transgenders or communities which do not identify themselves as a part of merely a single gender. So, while these communities have had their history, since the era of Kings and Queens even before the Mughal Empire in India, that is during the Ancient period, such as the myths of Mahabharata or the Ramayana[10],

why have these communities been excluded from the laws related to the sexual assault, rape and violence against them?

There have been various studies which have been documented against the violence and assaults against the Transgender Communities of India. [11]

However, the conclusions derived from these studies were the most shocking

Sexual violence is a constant, pervasive theme in all the narratives that we’ve collected in our report. Along with subjection to physical violence such as beatings and threats of disfigurement with acid bulbs, the sexuality of the hijra also becomes a target of prurient curiosity, at the least, which leads to brutal violence, at the most. As the narratives indicate, the police constantly degrade hijras by asking them sexual questions, feel up their breasts, strip them, and in some cases rape them. With or without the element of physical violence, such actions constitute a violation of the integrity and privacy of the very sexual being of the person.[12]

The Idea of Male on Male Rape

I was raped by six drunk men, they verbally abused me for being a homosexual, and took turns filming the whole thing, he says. Confused, ashamed and angry, Vinodhan did not even seek medical help. I thought everyone would blame me for hooking up, he says. I did not know how the police would treat a gay man. (Menon, P.)[13]

Being repelled by the general community of India, the homosexuals often become vulnerable targets for people who wish to assault them and save themselves from the rimes committed against them. There has been no assumptions regarding the punishment or male on male assault in India whereas, thus showcasing that this has yet not been recognised in the Indian society.

Siddharth Narrain, during his address to the duress caused in case of assault of people who are not women, stated that Who is to say that the sexual humiliation suffered by transgender persons and men, and by those intersex persons and sexual minorities not born women, is a lesser violation of the personal, inner space, a lesser injury to mind, spirit and sense of self?[14]

Why Laws Should Be Gender Neutral?

The first assumption that women cannot be perpetrator comes from the fact that the definition of rape has been a widespread term and yet deciphered only as a penile-vaginal intercourse, making people believe that only men can assert their dominance as to the fact that they were biologically built stronger than women. [15] Thus, with the Amendment in force, the definition of rape has not been just limited to that but various other things such as the insertion of objects, finger, oral and anal penetrations as well. [16]

The second assumption or the argument that women cannot become perpetrators comes from the fact that men having arousals, implies consent. However, the arousal, i.e., the erection of the penile organ of the male body does not imply consent. Studies have proven that arousal or the erection of penis does not mean that is has taken place due to the sexual awakening inside the body. The reasons for arousal could be fear, humiliation and anxiety, leading to such erections in the body. [17]

There has been developing acknowledgment of male exploitation all around the globe. Countries that have embraced unbiased laws of gender-neutrality include: Canada, every single Australian express, the Republic of Ireland, Finland, England and Wales, and by far most of states inside the United States.[18]

Part III of the Constitution ensures basic rights to each resident of India.[19]

Article 14 reveres the privilege to fairness under the watchful eye of law, i.e, it provides equality to all and Article 15 accommodates preclusion of separation on the grounds of sex, i.e, no discrimination can be made on the grounds of sex of a person. Men in this manner must be qualified for indistinguishable rights from women. Despite the fact that male assault is a less incessant event than female assault, they can't be precluded from securing the privilege to balance, thus they are too, entitled to equal rights as the women.

Providing equal rights to men, does not take away the rights of women and does not counter as a backlash as many people would state. On the contrary, giving such rights to men and enabling them to open up and giving them a platform to speak, would only encourage the reduction of the toxic masculinity which has been a part of the assertion of dominance, a leading cause of violence against women. Thus, the feminists, have themselves, recognised the concept of male victimisation.[20]

The reasons why men do not open up, is because of the fact that men do face a backlash, of societal stigma surrounding them, that, they are deemed to be un-manly or are deemed to be termed as not a real man for the sole reason that he failed to enjoy the sexual encounter advanced towards him by a woman. [21]

In the case of State. v. Sheodayal, 1956 Madhya Pradesh High court opined that modesty of a woman can be outraged by another woman under the purview of Section 354 of IPC[22].The question whether a woman can commit gang rape was dealt by the Supreme Court in the case of Priya Patel v. State of Madhya Pradesh[23]. It was alleged that in case of gang-rape, common intention was required. Yet, a woman was not deemed to have committed rape. Where in case of the criteria to be a common intention, a woman’s presence in the part of a gang-rape is not to be considered, shall remain unsolved. Despite widespread conversations and classic debates, this still remains an ambiguity and researchers have not yet decided upon the fact whether they should or should not be considered as assaulters against other women.

Conclusion
The most unmistakable view against complete impartiality is the male centric mentality of the Indian culture and the negative ramifications for female exploited people that it may prompt. Unexpectedly, the supporters of complete sexual equity depend on the contention of right to correspondence and the social disgrace that encompasses male assault. After examining both the sides, the specialist has arrived at the resolution that while sexual savagery against guys and transgender must be tended to, it should not make an impeding condition for female exploited people for assault. We should endeavour to make an equivalent society and must move toward accomplishing impartial laws.

The existence of the transgenders ad male rapes in India, cannot be denied or refuted. Be that as it may, considering the circumstance and treatment of ladies in India at present, it would not be astute to definitely change the assault laws into sexually unbiased laws. We should embrace a bit by bit approach. Along these lines, as suggested by the Verma Committee, the assault law must be changed to make the injured individual sexual orientation comprehensive while the culprit remains sex explicit.[24]

End-Notes:

  1. The Criminal Law Amendment Act, section 354 (2013)
  2. Agnes, F. (2002). Law, Ideology and Female Sexuality. Economic and Political Weekly,844-847
  3. Ibid
  4. Sakshi vs.Union of India, AIR 2004 SC 3566.
  5. Tuka Ram And Anr vs State Of Maharashtra, 1979 AIR 185.
  6. Baxi, U., Dhagamvar, V., Kelkar, R., & Sarkar, L. (1979) An Open Letter to the Chief Justice of India.
  7. Supra note 2
  8. Haskar N. (2005).Human Rights Lawyering, A Feminist Perspective. Writing the women’s Movement, a Reader, 135, Zubaan and Penguin Books India Pvt. Ltd.
  9. Supra note 2
  10. Narrain, S. (2003). Being a Eunuch. The Frontline
  11. Human Rights Violations Against the Transgender Community: A study of Kothi and Hijra sex workers in Bangalore, India, (2003). People’s Union for Civil Liberties, Karnataka.
  12. Ibid
  13. Menon, P. (2013). Lacking support, male rape victims stay silent. The Times of India
  14. Narrain, S. (2013). Crimes of Exclusion. The Indian Express.
  15. Vipra J. (2013). A case for gender neutral rape laws in India, CCS working paper
  16. Criminal Law Amendment Act, Section 375 (2013)
  17. Sarrel, P. M., & Masters, W.H. (1982). Sexual molestation of men by women. Archives of Sexual Behavior, 11, no. 2, 117-131
  18. Rumney, P. (2007). In Defence of Gender Neutrality Within Rape. Seattle Journal of Social Justice, 6, 481
  19. The Constitution of India, (1950).
  20. Supra note 18
  21. When men are raped. Ohio Department of Health.
  22. Annavarapu, S. (2013). Heteronormativity and Rape: Mapping the construction of gender and sexuality in the rape legislations in India. International Journal of Criminal Justice Sciences (IJCJS) ã Official Journal of the South Asian Society of Criminology and Victimology (SASCV), ISSN: 0973-5089, 8 (2), 248ä 264.
  23. Priya Patel v. State of Madhya Pradesh, (2006) 6 SCC 263.
  24. Report of the Committee on Amendments to Criminal Law (2013)

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