Posted by Isha Prakash

The Indian Constitution, the largest in the world, provides for each intricate matter that concerns the people of this country, be it citizens or even otherwise. The Indian Constitution provides for and protects all the various sections of society. Amongst these elaborate provisions, are gender-neutral laws and gender-specific laws.

Gender-neutral laws are laws that do not specify requisites as to the perpetrator or the victim. That is, these are applicable to anyone who commits a crime irrespective of their gender. There are a multitude of laws that are gender-neutral. The laws governing murder, theft and embezzlement are all gender-neutral laws, to name a few.

Gender-specific laws, on the other hand, are laws that are more limited in nature. These laws are very few in number and can usually only be evoked by women – some significant examples of the same being rape, domestic violence and so on.

And though, there has not recently been a large wave of activism with people demanding gender neutrality in India, this has become a hot topic for conversation in recent times. There have been various debates raging over the relevance of such a concept in our country and the legal complexities associated with implementing it, especially in the light of the majority of developed countries recognising gender neutral laws which provide for relief and remedy where the victims and perpetrators many be of any gender or sexual orientation.

Also read: Law School And The Myth Of Neutrality

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However, one tends to be under the false impression that gender-specific laws are unfair and actually biased in nature. The law completely accepts and adheres to the very real possibility of rapes against children, including boys and has provisions for the same – the provisions of Section 377 that have not been struck down and were upheld, deal with this exact issue. Hence, there are other provisions that make up for these shortcomings and provide safeguards wherever necessary.

Only 4 countries in Asia have gender-neutral laws in place and Ms. Flavia Agnes, the founder of Majlis, a legal centre for women rights believes that India is not ready for this yet.

The use of the phrase ‘gender-neutral’, while appearing to be neutral and equitable, actually conceal the harsh vulnerabilities that certain persons have to live with.

In a country like ours, the significance and need for gender-specific laws must be acknowledged and highlighted because they help create a safer place for women and help bring about equality, by coming to the aid of a very disadvantaged fraction of the society. Now, in the aforementioned 493-page judgement, same-sex love has been upheld by the judiciary. But there has been no mention at all about same-sex marriages. 

One day, when permitted, there will be a complete shift in the configuration of legal wed-locks so far and all of the current laws governing marital relationships must then be completely restructured to suit a widened sense of marriage, which is now made of a new fabric. Some of this restructuring, inevitably will involve redoing gender-specific laws that can currently be accessed only by women, both within and outside of a marriage. It is therefore the right time to look into how gender-specific and gender-neutral laws function.

The use of the phrase ‘gender-neutral’, while appearing to be neutral and equitable, actually could be a cause of grave injustice and conceal the harsh vulnerabilities that certain persons have to live with, Vrinda Grover, a lawyer and a human right activist told Indian Express. The purpose of the law is to provide protection, and those who are marginalised, socially and otherwise, require the protection of the law.

The Justice Verma Committee Report, 2012 fully favoured gender-neutral laws and the Criminal Law (Amendment) Ordinance of 2013, which upheld the committee’s view, was then published in The Gazette of India.

Keeping the concept of gender-neutral laws in mind, sexual harassment, voyeurism, and stalking were added to the Indian Penal Code and certain amendments and deletions were made to IPC, CrPC and the Evidence Act, 1872. But the ordinance on making all laws gender neutral lasted for 58 days and was repealed and replaced by The Criminal Law (Amendment) Act, 2013. Therefore, the current provisions stating stalking and sexual harassment became gender-specific, where the man is the sole perpetrator and women are the sole victims.

If today, a woman faces domestic violence at her matrimonial home, she can file a case against her husband and/or her in-laws under the Protection of Women against Domestic Violence Act. Similarly, if a woman faces harassment at her workplace, she can file for justice under the Sexual Harassment at the Workplace Act. This ensures a safer environment for women with protective measures and safeguards in place.

Wherein, if the laws are not gender-specific, the perpetrator can file a counter-case against the victim in order to mislead the law. This will hence complicate the journey to justice for the woman who has already been violated once and paves way for more victimisation at the hands of the wrong-doer and his lawyer, leaving her distraught and discouraged to approach the courts seeking justice, which will then destroy the very purpose of a judiciary, the very heart of a democracy.

adapt a law that states that the perpetrator is gender-specific, as was before but the victim can be gender-neutral.

Putting forth his view in the context of implementation of gender neutrality in the Indian society, Senior Advocate Colin Gonsalves strongly opposed the idea and said, “The Law should be discriminatory for women and if it is a little discriminatory against men, it doesn’t matter. Positive discrimination in favour of women and against men is constitutionally permissible.”

A brief way of saying this, is to reiterate Senior Advocate Karuna Nandy, who despite being in favour of gender-neutrality, agrees with this point and said, “If a Thakur man raped a Dalit woman, he would be advised by his lawyer to file an FIR against the Dalit woman.”

The disadvantage that will then be posed before this woman is unfathomable to those of us who do not know of how influential these perpetrators are. They use their social status as a cover to shield themselves from penalisation and seldom are they held for the crimes and atrocities they inflict upon these marginalised groups.

A favourable addition to gender-specific laws, however, could be to tinker with the scope of their applicability. This is to say that, today we must look at the current scenario at hand and broaden the lens of the law by changing the old belief wherein both the perpetrator and the victim are gender-specific and instead adapt a law that states that the perpetrator is gender-specific, as was before but the victim can be gender-neutral.

if the laws are not gender-specific, the perpetrator can file a counter-case against the victim in order to mislead the law.

This comes after many cases that often go unreported due to a notion that society will tend to invalidate a man who comes forward about harassment by another man. Previously, several male actors had also shared stories where they had been/were close to being victims of the old syndrome that haunts the film industry till date, popularly known as the ‘Casting Couch’ syndrome. Ideally, after the recent judgement surrounding Section 377, the gates to such a recommendation, should be thrown open instead of being thrown out into the open, left in the hands of society for them to decide what’s real and what’s not.

As much as a genderless ‘law of the land’ seems to be a dream, but like all laws, their practicality must be looked into. Complete ‘gender-neutrality’ and ‘equality’, unlike what’s seen at the face of it, are anything but synonyms. In reality, they’re anything but.

We must always ask ourselves, “this law is necessary but is it workable?”. Not just for us, but for all those sections of society that it is bound to have an impact on. For the true essence of Law is not to make our Nation sound progressive but for the citizens of this Nation to be able to put to use.

Also read: Why The Adultery Law Verdict Shows Promise For A More Gender-Sensitive Legal System

In conclusion, I would like to merely quote Mr. Thomas Jefferson who said, “Nothing is so unequal as the equal treatment of unequal people.”

Isha Prakash is a human pun generator and wanderer disguised as a law student based in Bombay. She is aspiring to be a women rights’ lawyer until the day there isn’t a need for one anymore.

Featured Image Source: Indian Today

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