GENDER NEUTRALITY RAPE LAWS IN INDIA MOVE 'BEYOND BINARY'!

Authors:

Navnee Gulati, Lloyd Law College

Vanshika Malik, Ramaiah College of Law, Bangalore

Editor:

Shristi Singh, UWSL, Karnavati University

INTRODUCTION:

“It is better that ten guilty persons escape than one innocent suffer”- Sir William Blackstone

The thought behind this ideology is those sufferings from innocent break the silence of humanity! Breaks the faith of society from the rule of law! Gender inequality is one of the most prevailing stigmas all around the world. Inequality not only shapes human consciousness but also shakes the foundation of the human community. Gender neutralization aims in the eradication of differentiation on a sexual basis. India has revolved in the long run to achieve a gender-neutral nation. Section 375 of India Penal Code gives an insight into the definition of rape which has been amended several times to detach from the patriarchal notion attached to rape. The purpose of gender neutrality is not to desexualize rape but to inculcate an understanding that rape travels beyond the male- female paradigm. Time and again it has been emphasized that laws are not perpetuated to address institutional concern but to insert changes in attitude and behavior which is not only linguistic but institutional and social. [1]

JOURNEY OF DETERMINING GENDER NEAUTRAL RAPE LAWS IN INDIA

Before independence, India was mainly a male dominated patriarchal society with the notion of masculinity over femininity. There were widespread of inequalities between men and women in the areas of the social, political, and educational arena. Gradually the mindset changed when women proved to be a struggler and participated in freedom of nation with equal efforts as of men. The Post-independence constitution was formulated to grant equal opportunities to men and women. Legal framework has always tried to expand its domain and help in the advancement of women by providing them equal status and opportunities. Gradually there was a shift towards feminism for the betterment of society which is usually misinterpreted considering the betterment of one gender only. As a result of all these havoc concerns raised, legislations fail to the approach of equality and are seen as women centric. No attention and legislation target the safety of men towards sexual offences. Section 375 of Indian Penal Code, 1860 has undergone several amendments however it still holds the traditional notion where the victims are always women and perpetrators are always men.

The first rape case was lodged in 1971 against a police constable by a complaint from a tribal girl. The accused was acquitted on the ground on the presumption of consent by the victim since she did not raise any cries for help. This decision of Supreme Court ignited criticisms and as a result of it, the government amended the rape laws of the nation for the very first time and ruled that no consent would be seen on the part of women if she says so once. Gradually more and more reliefs were given to women against such offences which gradually splurged the question of gender neutrality in the nation[2]

The wave of gender neutrality blew the nation time and again and for the first time in the case of Sudesh Jhaku v. K.C. Jhaku, the honorable court recognized that sexual assault towards men should be treated in the same manner as women. Sakshi v. Union of India is another landmark judgment where apex supreme court directed law commission to dive in the issue, as a result, the 172nd law commission released their report which stated male rape laws to be unbiased. These recommendations were considered in Criminal Law Amendment Bill, 2012 but before its enactment nation was under uncontrollable tremor of Nirbhaya Rape Case. Government of India constituted Justice Verma Committee to investigate the essential reforms and loopholes of prevailing rape laws. Justice Verma Committee in its recommendations suggested increasing the ambit of definition of rape under section 375 of the Indian Penal Code. Committee recommended expanding its horizons by not limiting it just too penile-vaginal intercourse. Adding to this Justice Verma Committee also suggested transforming rape laws to be gender neutral and this recommendation was bashed with a lot of criticism from various feminist groups which argued that gender neutral laws would make the powerful men more powerful and the vulnerability for women would keep on increasing. As a result, the later recommendation by the committee was rejected.[3]

The loopholes of system and enactments are time and again visible in various issues and cases. In the case of Priya Patel v State of Madhya Pradesh, women were accused of the offence of gang rape, the court in its denial stated that “women cannot be said to have an intention to commit rape” advancement of society has attained to that stage where women are guarded with equal rights, equal opportunities nevertheless not equal offences![4]

SIGNIFICANCE OF GENDER-NUTRALITY OF RAPE LAWS IN INDIA

Enactments are being confined to secure the rights offered to people however here in the current situation; there are such a significant number of existing legitimate arrangements which are ladies explicit. In this way, because of progress in the public eye, there is a need to secure men just as under the Constitution of India they additionally have an equivalent option to get insurance. Indian constitution conceded the Right to fairness which expresses that everybody ought to get equivalent rights. No one ought to be segregated based on sex, sex, religion, spot of birth, and so on, however we don't have enactment to hear and change the complaints of inappropriate behavior against men stands ‘volatile’ articles of Indian constitution. Along these lines, to keep up constitution legitimacy and offer fairness to each area of society there is a need to make laws sexually unbiased.

The most significant standard worldwide law Universal Declaration of Human Rights (UDHR) announces everybody is qualified for all opportunities and rights which are revered in the affirmation with no qualification on any ground including sex. UDHR states that each individual is equivalent under the watchful eye of the law and qualified to get equivalent insurance from the law with no separation. Article 8 of UDHR states with the intention of each individual has an option to profit cure from the national council in the occasion of an infringement of any law or basic rights. These worldwide laws consume sexually unbiased language fights for uniform execution of the law. Article 2 particularly fights that laws ought to be figured which are sexually impartial.

The Significance of unbiased laws has been likewise recognized in the 172nd Law Commission Report expressed previously. Equity Verma Committee framed in 2012, supported the unbiased laws, and there were some different areas like following, voyeurism, has been included Indian Penal Code. The Gazette of India distributed the Criminal Law (Amendment) Ordinance 2013 containing the perspective on the council. However, later on, this statute was revoked and supplanted by the Criminal Law (Amendment) Act 2013 which is again sex explicit.[5]

In this way, improvement in the public eye has ordinarily mirrored that there is a requirement for impartial laws yet significant advances have not been taken at this point. The Union government has made one move to make laws sexually unbiased. KTS Tulsi, Parliamentarian and, Senior Lawyer presented a private part's bill before Rajya Sabha in July 2019 to make the sexual offenses laws unbiased. In that charge, he suggested that the word, 'man' and 'lady' ought to be supplanted with 'any individual' so any individual who is explicitly badgering can look for cures under criminal laws. By including the word any individual will incorporate transsexual additionally since they are not a special case they can likewise be explicitly bugged by somebody. Along these lines, on the off chance that this bill will come out as an Act, at that point it will help different areas of society to look for a cure.

CONCLUSION

In this excursion of deciding the requirement for impartiality in Rape/Sexual Assault laws, we have attempted to investigate different zones that have not been concentrated sufficiently by governments and academicians. We surveyed a few interconnected subjects and fundamentally broke down issues encompassing male assault. There are numerous assumptions with respect to male assault in the public eye which have been assessed in this paper and one arrives at the unavoidable resolution that the requirement for impartiality in assault and rape law in India isn't just prompt but on the other hand, is essential. Man centric society may give off an impression of being beneficial to men on the outside of it, yet it influences them adversely as a general rule. Is especially astounding that the information on homosexuality of guys as atrocities has been in the open area since days of yore, in any case, an authoritative point of view didn't consider this issue sufficiently fundamental to look for a resolution.[6]

The answer for the acknowledgment of male assault lies first in surrounding all the current laws in a sexually unbiased language to assert the possibility that sex is not, at this point the foundation for deciding lawful wrongs. Besides, since the law is only the group’s will of society, the need for sexual orientation sharpen the whole equity apparatus and update legitimate devices for insightful organizations is a sine qua non. On the off chance that a general public must be comprehensive in soul, there is a need to instill assorted variety and comprehensiveness in thought as well as in real life. Last yet not the least, making laws and preparing police officers are the greatest an administration can do; the genuine change will come just when the group will of the individuals mirror the equivalent. To sum up this thesis, the expressions of Robert F Kennedy appear to be suitable: "Laws can encapsulate norms, governments can implement laws yet the last undertaking isn't an assignment for government. It is an errand for all of us. Each time we stop people in their tracks the other way when we see the law spurned when we endure what we know to not be right when we close our eyes and ears to the degenerate since we are excessively occupied, or excessively scared, when we neglect to make some noise and stand up we strike a blow against opportunity and tolerability and equity.[7]

[1] https://www.jstor.org/stable/4411809?seq=1 [2] https://theleaflet.in/transgenders-and-rape-law-is-equal-protection-of-law-still-a-pipe-dream/ https://indiankanoon.org/doc/623254/ [3] https://criminallawstudiesnluj.wordpress.com/2020/05/01/gender-neutral-rape-laws-need-of-the-hour/ [4] https://www.cambridge.org/core/journals/asian-journal-of-comparative-law/article/beyond-the-binary-rethinking-gender-neutrality-in-indian-rape-law/9BC983FB009B7BBDEB78CED0BC5144C0/core-reader [5] https://blog.ipleaders.in/rape-sexual-assault-law-india-gender-neutral/ [6] Cr.M.No. 23962 of 2017 in Cr.A.No. S-2396-SB of 2017, High Court of Punjab and Haryana at Chandigarh. [7] <https://www.bartleby.com/73/1746.html> accessed 24th July 2019.

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