Amit Patel DSNLU, Vishakhapatnam
Prachi Ganeriwala, Amity University, Kolkata
Shristi Singh, UWSL, Karnavati University
Gender neutrality is a concept that tells us about the eradication of distinction between genders like a male, female or transgender in the drafting and execution of the state laws. Its basic aim is to make every citizen entitle to equal rights, without differentiating on the basis of sex. Rape laws in India are not gender neutral and only victimise and recognise the right of females. Despite, numerous amendments in the definition of rape under Section 375 of Indian Penal Code, 1860 it still is not gender neutral. Gender neutrality in Indian rape laws was first time dealt in Indian Court in the case of Sudesh Jhaku v. K.C. Jhaku, where the court stated that sexually assaulted men should also be given the same protection of the law as given to female victims. In Sakshi v. Union of India the Apex Court directed the whole issue to law commission. Consequentially, the 172nd Law Commission’s report recommended making rape laws unbiased.
Gender neutrality in rape law is not considered by an Indian judicial authority and is also not discussed in the parliament of India. However, other nations had recognised the gender neutrality in rape laws and precedence in the matter which we are going to discuss: In 1984, in the Court of Appeals of New York in the case of People v Liberta the court faced the question of the constitutionality of Section 130.35 of New York’s Penal Code, which stated that “a male is guilty of rape in the first degree when he engages in sexual intercourse with a female by forcible compulsion”. The defendant in the particular case argued that the particular provision speaking about rape is not gender neutral and thus it is unconstitutional as it violates its right to equality before the law which is protected by the constitution.
The court listening to the arguments stated that Section 130.35 of the Penal Law violates equal protection of gender because it applies to males who forcibly rape females but exempts the females from criminal liability for the forcible rape of males. The piece of information that the act of a female forcibly raping a male may be a difficult or rare occurrence does not mean that the gender exemption convince the constitutional test, a gender-neutral law would indisputably better serve. The court thereafter gender neutralised the law later which was done by US Supreme Court in 1980 in the case of Michael M v Superior Court of Sonoma County. The apex court in its decision said that the law only males who violated the law whereas not females which violate the principles of equal protection before the law.
ACT OF RAPE SEEN THROUGH THE PERSPECTIVE OF HUMAN RIGHTS& STATE’S OBLIGATION
An act of rape whether done against a female or a male should be viewed solely as a human rights violation. Indian Laws only recognises the rights of a female. If rape is indeed a human rights violation, then law stating rape should not exempt any human being on the basis of gender. Human rights, which are given to every citizen of India through the Constitution such as the right to life with dignity and equal protection before the law, are some fundamental rights that each person is entitled to by the basic reason of being a human being, which serves all the gender male or female and transgender to an equal extent.It has been supported by Article 2 of the Universal Declaration of Human Rights provides that “everyone is entitled to all the rights and freedoms outlined in this Declaration, without distinction of any kind, including sex or another status.”
As per the Indian Constitution, Article 14 provides that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Also, Article 15(1) prescribes that “the State shall not discriminate against any citizen on grounds barely of religion, race, caste, ‘sex’, place of birth or any of them.”Conversely, on the other hand, Article 15(3) states that “nothing in this article shall prevent the State from making any special provision for women and children.” Therefore, it does permit the state to make special laws in favour of the women on the basis of sex but only up to the extent of this article. This special provision is eventually going against the provision of Article 14 which in itself is a fundamental right. The special provision is when being discriminatory in its true nature it is the state obligation to amend the law.
IMPORTANCE OF GENDER-NEUTRAL LAWS
The intention behind framing legislation is to protect the rights bestowed to individuals but here in the present scenario, there are so many existing legal provisions like Sexual harassment laws that are gender-specific. There is a need to protect men as well as under the Constitution of India they also have equal rights to get protection. Indian constitution granted the Right to equality which states that everyone should get equal rights and nobody should be discriminated on the basis of sex, gender, religion, place of birth, etc, but we don’t have legislation to hear and redress the grievances of sexual harassment against men stands volatile articles of Indian constitution. So, to maintain constitution validity and give equality to every section of society there is a need to make laws gender-neutral.
The fact of today’s situation depicts that society is shifting from a patriarchal society. Also, the two-section of society, namely Men and Transgender are being ignored so to maintain the constitutional rights legislations have to be re-analysed. With the advancement of the socio-legal framework in India, there is a need to acknowledge the rights of men, transgender, and the LGBTQ community. As we have seen that to protect some rights of the Transgender Government has passed the Transgender Persons (Protection of Rights) Bill, 2019, similarly other laws need to be analysed to make them gender-neutral.
The Importance of gender-neutral laws has been also identified in the 172nd Law Commission Report stated above. Justice Verma Committee formed in 2012, favoured the gender-neutral laws. On the account of the advancement of society and women who are at par with men nowadays, there is a need to make laws gender-neutral providing equal protection to everyone.
THE ARGUMENT AGAINST GENDER NEUTRALITY
There are three common arguments against gender neutrality in Indian rape law that warrant attention.
A. Statistical Imperfection
The first argument against gender neutrality in rape law is that, unlike with women, there are no official statistics to evidence that non-females are raped in India or that women can rape another person. This dispute draws sustain from an fundamental belief that ‘it is still men who are raping and women who are being raped’
It cannot be denied that there are likely to be no statistics in India to evidence sexual assaults beyond the traditional notion of rape. This, however, does not lead to the conclusion that such instances do not occur. There exists justification for the absence of official statistics on the issue, especially in the context of transgender persons. In India, no law recognizes rape beyond the traditional notion, which makes it more difficult for non-female victims to file a complaint. Therefore, the statistical imperfections do not afford a legitimate basis to deny the need to revisit the issue of gender neutrality in rape law.
B. The menace of counter-complaints
The second argument against gender neutrality in Indian rape law is concerned with the fact patriarchal societies like those in India are considered to be ill-prepared to accept a completely gender-neutral definition of rape since doing so would introduce a serious threat of counter complaints being filed against every genuine complaint. However, the very existence or extent of this threat is contingent upon the filing of a counter complaint by a man against a woman and cannot justify the absence of gender-neutral laws.
C. Impairing the Gendered History of Rape
The third argument against gender neutrality is that rape is exclusively conceptualized in the context of the deeply ingrained power inequalities between men and women. There exists a fear that introducing gender neutrality in rape law would erode the history of the offence and compel an analysis that ignores its role in effectuating the gender inequality.
To quash this fear, one must retrace the true meaning and purpose of gender neutrality. Gender neutrality, refers to a more extensive definition of rape from the perspective of the victim the conceptual modification only extends to include non-female victims and non-male perpetrators within the notion of rape and requires equality.
When we look at patriarchy, we determine how the socio-cultural fabric of India, while placing men as the head of the family, impedes the recognition of male rape. There exists a stereotypical notion of men that they are too sturdy to be repressed, whereas the likelihood of being raped revolves around the notion of the victim being untenable. This notion prevents the male victim from soliciting legal recourse due to the prospect of embarrassment. Gender neutrality in rape laws doesn’t aim to desexualize rape entirely; rather it seeks to increase the gamut of victims of rape. The reforms are not designed to make gender irrelevant in the understanding of sexual violence rather it intends to eliminate the traditional male-female paradigm notion attached to rape. The main idea behind the implementation of gender-neutral rape laws is that even though females are the main victims of sexual violence and males the main perpetrators, one still has to consider how sexual assaults beyond the male-on-female criterion are to be condemned by the criminal law. As these survivors have finally found the courage to share their experience with us, we are denying justice to a considerable number of men.
 Sudesh Jhaku v. K.C. Jhaku, 1996 (38) DRJ 22.  People v Liberta 64 NY 2d 152 (1984).  Penal Code, State of New York, §130.35.  People v Liberta 64 NY 2d 152 (1984)  Michael M v Superior Court of Sonoma County 450 US 464 (1981).  Universal Declaration of Human Rights, GA Res 217(III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71, art 2.  Indian Constitution, art 14.  Indian Constitution, art 15(1).  Indian Constitution, art 15(3).