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Gender Inclusivity In The Indian Laws

In 2030 we want to be able to talk about a world that has achieved gender equality, a 50:50 planet.

It has been multiple decades now that we are talking about Equality. The word has literally flooded the entire print and electronic media. Everybody seems to be talking about equality, to achieve equality firstly we need to realize the requirement of Gender Incluisivity, how it is essential for a healthy society and the various means ad methods to achieve the same.

One of the most notable manifestation of inequality worldwide is Gender Inequality. Consequent to a very strong feminist movement that began towards the middle of the twentieth century, throwing light on the gross inequalities and atrocities that women suffer on a day to day basis, a need was felt to make amendments in the law such that women could come on an equal footing with men.

The legislations we started with, were fairly, perhaps fully legitimate for the times, but the dawn of the passing day has put men in such gullible a position, that they are victimized by the so-intended women empowering legislations. We are in a country where rarely people talk about the rights of transgender community. Thus, this decade has acknowledge the need of a Gender Incluisivity in the laws to provide the equal opportunities, status and rights to every gender.

Gender inclusion is a concept that transcend mere equality. It's the notion that all services, opportunities and establishments are open to all people and that male and female stereotypes do not define societal roles and expectations.

Gender Inclusivity in the Indian laws has been enshrined in its Constitution, the very document that provides that basis and guidance for governance in a democracy. The concept of gender inclusivity in India is inextricable from the workings of the democratic principles we have adopted. While we are still a long way from achieving what can be termed as equality in the sphere of gender, the fact that the Constitution provided a foundational basis to the gender inclusivity in the Indian laws has helped us sustain a struggle for levelling the field en masse and has paved the way for enactment of legislations that were passed in the years following 1950.

The Indian State has in the years following Independence enacted various laws that provide for equal rights, help counter the results that have arisen from social discrimination and provide support to women. While there are various crimes defined under the Indian Penal Code, 1860 (IPC) of which both men and women can be victims, but there are a few crimes which fall under the category of crime against women.

There are also numerous legislations that have specific provisions to address women and their interests thereby providing a strong legislative basis for gender equality in India. The Gender Inclusivity has taken major space in the Indian laws recently the Transgender persons (Protection of Rights ) Act, 2019 has been passed by the parliament of India with the objective to provide for protection of rights of transgender people, their welfare and other related matters.

Statement Of Problem
The purpose of this paper will be to analyse the Gender Inclusivity in the Indian laws and to research the laws which are made to provide equality to every gender. The specific research area addressed in this paper is the inclusion of gender in the Indian laws and how the Indian legal system works for the gender equality.

The objective behind making this paper is that the information will be of value in understanding the all legal aspects of gender inclusivity in India and to research the various laws which are specifically made for the women and how it works to give equal status to the women in the society and laws which works equally for the men and women, the laws which are specifically made for the transgender community. The paper aims at providing analysis with the help of contemporary issues in India.

Research Questions
The research questions addressed in this paper are:
  • Are the laws in India sufficiently gender neutral?
  • Whether the laws in the name of curbing the offences against women victimizing the men of the society?
  • Whether the transgender community recognized in India and does the transgender community enjoys various natural rights provided under the Constitution of India?
For the purpose of this research I have come up with my hypothesis,
Null Hypothesis (H0): The present legal system is not sufficiently providing the gender equality.
Alternate Hypothesis (Ha): The present legal system sufficiently providing the gender equality.

This paper has been written after extensive reading of several judgments and legal aspects. The present paper deals with analytical research and descriptive study. Data for this research is collected from secondary sources. Data collections methods are:
  • Legal articles
  • Books
  • Journals
  • Legal magazines

Literature Review
The literature review sheds light on the studies conducted on the gender inclusivity in the Indian laws, the awareness levels and resultant effect of gender inclusivity and equality and also how effective are the legislations and constitutional provisions as a tool for achieving the gender sensitization in the country. Gender inclusivity involves reviewing and restructuring processes to encourage and provide equal opportunities to each gender.

This article discusses, within the broader legal framework of gender inclusivity and equality in India. Various international conventions and treaties recognizing basic human rights and the same has been incorporated in The Constitution of India, yet gender equality is far from reality. The various acts which are specifically made for the women's and The Transgender Act, 2019 which are enacted for the protection and rights of transgender community have been referred while writing this paper.

Provisions Of The Constitution Of India

The Constitutional Provisions that provide for every citizen of India without any discrimination on the basis of gender include Articles 14,15,16,39 and 42.
  1. Article 14 provides for equality before the law, or for the equal protection of laws. The equality provided herein is therefore two pronged: equality before the law means that the state shall not discriminate between two citizens- every person is the same in the eyes of the law. On the other hand, equal protection of laws enables the State to undertake positive discrimination in order to bring all citizen on an equal footing. It gives the state freedom to make the special provisions for disadvantaged sections of the society, which include affirmative action.
  2. Article15(1) explicitly prohibits any discrimination on the basis of sex, it states ' The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them'. This does not prevent the State from taking affirmative action in favor of women. Under Article 15(3), the state is provided with the power to make special provision for women and children.
  3. Article 16 provides for equality of opportunity of all in matters relating to public employment or appointment to any office, it specifically forbids discrimination on the ground of sex. Article 16 (2) reads ' No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.'
  4. Article 39 provides for securing the right to an equal means of livelihood for both men and women and that both men and women have the right to equal pay.
  5. Article 42 provides for securing just and humane conditions of work and maternity relief for the women.

Provisions Under The Indian Penal Code, 1860

The Indian Penal Code, in its basic form, is the main criminal code of India, which lists all the cases and punishments that a person committing any crimes is liable to be charged with and covers any Indian citizen or a person of Indian origin.

While there are various crimes defined under the Indian Penal Code, 1860 of which both men and women can be victims (robbery, theft, murder, etc.) but there are few crimes which fall under the category of crimes against women. Given below is a detailed analysis of how the legislation in India is biased against men, with special emphasis on the Indian Penal Code, followed by a few suggestions to make the laws Gender-just.

S.2 of the said code lays down that every person shall be liable to punishment under this code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India. As is established by this section, the law does not distinguish between criminals, and every person who has committed an offence is liable to punishment under the code. However the assume mindset that all violence is male generated does not create a gender divide in the society, but provides a shield to the crimes perpetrated by women.

Women commit crime for the same reasons that men do. Crime has no gender, and neither should our laws.
Let's thrown some light on a few anti-male provisions of the Indian Penal Code. Although the instances are plenty.

Laws that Typically Favour Women
  1. Dowry Death( Section 304B)
    The term 'Dowry Death' sparks off vivid imaginations in one's head of a woman being taunted and harassed for money and finally, hanged to death within the four walls of the house. Feminists have us believe that every unnatural or untimely death of a married Indian woman is dowry death. Not only that, the feminist hyperbole on bride killing and  dowry harassment make it look like Indian men have an uncanny propensity to commit violence on their wives for money and property.

    Section 304B states that:
    1. If the death of a woman is caused by burns or bodily injury, or any other abnormal circumstances,
    2. Within seven years of her marriage,
    3. Provides she has been subjected to cruelty or harassment by her husband, or any of his relatives, for, or in connection with demand for dowry,
      Such husband, or such relatives, shall be punished with imprisonment for a term which shall not be less than seven years, but which may extend to imprisonment for life.
  2. Cruelty Against Women( Section 498A)
    Section 498A specifies that if cruelty and harassment are shown to be inflicted upon a married woman by her husband, or by any relative of her husband, or such relatives of the husband, shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine. This section should be read along with S.113A of the Indian Evidence Act to raise a presumption regarding abetment of suicide by the husband of a married woman.

The above two sections of IPC are non-bailable, non-compoundable, and cognizable offences in India. The clear intention behind these sections is to fasten guilty on husband, or in-laws, though they might not, in fact, have caused the death or injury. It has become a custom to claim that all the women have been driven to suicide due to dowry harassment. Under these sections, even if the allegation is false, there will be trial and the husband is considered guilty until proven innocent. The Supreme Court of India has termed this misuse of the law legal terrorism.

Justice Saldana's remarks are testimony to the way these laws are being misused to the detriment of innocent citizens. We need to sound a note of caution that the police and investigating authorities should not improperly and technically jump to the conclusion that merely because death has occurred that ipso facto a criminal offense has been committed. In as many as 44% of these cases prosecution is thoroughly unjustified. The consequences of these charges are extremely grave because the accused husband and invariably family members are placed under arrest. There are serious social and economic repercussions.

As per the National Crime Records Bureau's data, nearly 200,000 people were arrested over dowry offences in, but only 14.4% of the accused were convicted. The latest figures released by the NCRB indicates that while the number of cases registered under section 498A is increasing each year, the conviction rate is falling, for every case that resulted in a conviction, five other cases resulted in an acquittal and one case was withdrawn with the net result being that only one out of every seven cases resulted in a conviction.

Every year, twice as many married men, compared to women, commit suicides succumbing to verbal, emotional, economic and physical abuse by their wives and in-laws.

The Supreme Court, in the case of Sushil Kumar v. Union of India, observed that such provisions are intended to be used as a shield and not an assassin's weapon. The Court and the legislature have to make certain changes if the laws matrimonial cruelty are to be of any deterrence.

Looking into the recent observations and the increase in misuse of these sections, following suggestions are proposed:
  1. Are these laws really helping curb the menace of dowry and cruelty against women? Is legal terrorism the solution to all of women's problem? Are these laws really changing the mindset of the people who continue to treat women adversely?
  2. Burden of proof must lie on the complainant, and not on the accused, in alignment with the Universal Declaration of Human Rights which proclaims that:
    everyone charged with a penal offence has the right to be presumed innocent until proved guilty.
  3. In order to provide further relief, the offences could be made bailable and compoundable.
  4. Women and their families, who file such false complaints, must be penalized heavily, either by way of fine, or imprisonment, or both.

Rape (Section 375)

According to section 375 of the IPC, you have to be a man to officially rape, and a woman to officially get raped! The section does not recognize men as rape victims. Even in cases where a male victim is assaulted by a male attacker, it is not actually considered as rape. The law does not outline any difference between consensual and non-consensual sex between the male adults. Moreover, if a female is the perpetrator, the victim is left with no option to seek justice.

Male rape not being researched as widely as female rape, there are several statistics to suggest that men are raped and the prevalence of male rape is wider than is generally presumed.
Crimes like rape and murder do not see age, caste, colour of skin, nationality and yes, even gender or sexual orientation. Rape is seen across the extremes of age, sex and geographical boundaries.
All these facts indicate that there is a definite need to recognize and accept that men are raped, they also become victims of physical abuse and violence and they deserve as much protection from such gross crimes, as women do.

Other aspects of Rape laws:
  1. A man having sexual intercourse without a woman's will- No guideline as to prove a woman's will here. She might have had consensual sex and still allege rape and vindictive attitude.
  2. IPC 376B/C/D- Public servants/ higher-ups seducing a woman under their position and having sex with her are liable to imprisonment. No such punishment exists for when women seek sexual favour from men.
  3. If a man has sex with a woman after promising marriage, he can't breakup with the woman. If he does, according to the laws in India, he's a rapist. But if a girl does the same, it will be labelled as women empowerment.
  4. Age of consent: There is no age of consent for males. If a boy of 16 years and a same aged girl have consensual sex, the boy will be charged with rape!
The facts highlighted above speak enough for themselves and tell us how significant and urgent need for gender neutral rape in India is.

Laws relating to the modesty of a woman:
Section 354 deals with assault or criminal force with the intent to outrage a woman's modesty. However there, is no such law made to protect the modesty of a man, there are cases where women bully men and go unprosecuted, because the law of the country does not protect men from such crimes.

The situation has become so adverse that if a man accidentally touches a woman in crowded bus and the woman protests even slightly, the man shall inevitably invite public outrage by fellow passengers, even without being given chance to speak for himself,
Section 509 deals with words, gestures or acts intended to insult the modesty of a woman, and makes the perpetrator punishable with simple imprisonment for a term which may extend to one year or with fine or both. On the face of it, such a legislation is gender biased and another instance of the numerous such women safeguarding laws.

Laws Specifically Made For The Women

There are also numerous legislations that have specifically provision to address women and their interests.
  1. The Maternity Benefit Act, 1961: the MB Act applies to every woman employed in factories, mines, shops, commercial establishments that employ ten or more employees. There is no wage threshold under the MB Act.
  2. The Sexual Harassment of women at workplace (prevention, prohibition and redressal) Act, 2013: Workplace sexual harassment was first recognized by the Indian Legislature in the case of Vishaka v. State of Rajasthan, in which the Supreme Court framed certain guidelines, called the Vishaka Guidelines and issued directions to the Union of India to enact a law for combating sexual harassment at workplaces.
  3. Women's Reservation Bill: The Women's Reservation bill is a pending bill which has sought to amend the constitution of India to reserve thirty three percent( one- third) of the total seats in Lok sabha the lower house of the parliament and all state legislative assemblies for women.
  4. The Criminal Law Amendment Ordinance, 2018: This ordinance provides the death penalty for rape of girls below the age of twelve years. It amends the Indian Penal Code, Code of Criminal procedure, Indian Evidence Act, and protection of children from Sexual Offences Act.
  5. The Dowry Prohibition Act, 1961: Dowry system, giving and taking of dowry is a norm in India. According to this Act, taking or giving of Dowry at the time of marriage to the bride or the bridegroom and their family is to be penalised.
  6. Medical Termination of pregnancy Act, 1971: The aim of the Act is to reduce the occurrence of illegal abortion and consequent maternal mortality and morbidity. It clearly states the conditions under which a pregnancy can be ended or aborted.

Laws For Transgender In India

Since 2016, the transgender community in India has been fighting against previous versions of the Bill, citing various faults in it. Although there have been multiple amendments, none have been close to satisfactory.
The Transgender Persons (Protection of rights) Act, 2019 enacted by the Parliament with the objective to provide for protections of rights of transgender people, their welfare, and other related matters. The following protests have been done by the queer community against the 2016and 2018 bills, the 2019 Act has done away with few of the severely criticized provisions of the bill 2018, such as the criminalization of begging and the establishment of a district screening committee to process applications for issuance of transgender person certificates.

Loopholes of the Transgender Persons Act, 2019
Every citizen of India is entitled to basic rights which are guaranteed by the Constitution of India regardless of their sex characteristics or gender identity, rights like education, employment, healthcare and most importantly self- identification. The transgender community in India is been denied these rights with the passage of the Transgender Persons bill 2019 on November 25.

The Bill was meant to be a consequence of the directions of the Supreme Court of India in the National legal services Authority v. Union of India 2014 case judgment, mandating the Central and State governments to ensure legal recognition of all transgender persons and proactive measures instituted for their welfare.

The Act fails to incorporate yet other principles laid down by the Supreme Court in the matter of NALSA v. UOI, such as the right of transgender people to declare their self-perceived gender identity without undergoing sex reassignment surgery and reservations in jobs and educational institutions.

The act has also been criticized for imposing less punishment for crimes
Against transgender people compared with the punishments for crimes against Transgender people.

such detrimental laws? There is a much requirement to make the changes in the transgender act 2019 to provide the equal status to the transgender community in the society.

Conclusion And Suggestions
Our job is not to figure out the 'how'. The 'how' will show up out of the commitment and belief in what.

Following are suggestions made for our cause:
  • What we essentially require here is accepting the fact there can be crime against men, that men also suffer. We are somehow unable to accept that men can be violated as well, our legal system really required a need to make changes in the criminal laws, there shall be rights for protection of men as well not only for the protection of women only.
  • In terms people say Indian legal system is not gender biased but in actual our legal system made laws as per preference of the gender there is no equality provided to all the genders. There are many loopholes in the Indian laws. Strong legislation should be laid for the equal treatment with every gender.
  • There is no need to provide extra privileges to the women in education and employment sector it somewhere makes differences between the males and female, if we want equality between both male and female there must be equal treatment given by the legislation.
  • In the name of curbing the offences against women the laws are victimizing the men, there shall be a strict law against false complainants causing unquantifiable miseries to the innocent victims.
  • We as a society, really need to inculcate Gender- Sensitivity among ourselves, develop a feeling of respect toward the opposite sex, and in order to uplift one section, we do not have to oppress the other.
  • Wouldn't it be very hypocritical for us to proclaim EQUALITY as a Fundamental Right, and then deny the same to transgender persons, through.

  1. The Constitution of India , Bare Act 2016
  2. The Indian Penal Code, Bare Act 2017
  3. Singhal's Socio-legal dimensions of Gender
  4. Women and Law , Kalpana Kannabiran

    Award Winning Article Is Written By: Ms.Radha Sharma
    Awarded certificate of Excellence
    Authentication No: MA107705924612-18-0321

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