Gender Neutral Laws

Introduction

Gender Inequalities are a prevailing, arbitrary issue in our society that never had a conclusion. Earlier, no laws were protecting a particular gender a male, female, and transgender. Before the implementation of proper laws, it was the women who were victims of the treatment of inequality due to their gender. Women were not given education or any other rights which they gave to the men. There is a stereotypical view since ages that women are not equal to men. Due to this gender inequality, every person from the community was affected.  After great struggles, there came laws that would neutralize men and women. The oxford dictionary describes gender neutrality as “an adjective that is suitable for, applicable to, or common to, both male and female genders”. Then our constitution also mentioned that no person should be treated equally based on caste, creed, and place of birth. 

Though our legislations gave several benefits to the women in changing their life now it is felt that there is huge discrimination towards the men and women use their gender and exploit men. People feel that our society has become women-centric. All the cases are approached in a preconceived and one-sided way that are majorly on the women’s side that tends to antagonize men very easily until the verdict is produced. Some offences like rape, dowry, and adultery brought in-laws for women but huge discrimination is also bright in towards the men. We have laws for rape that would punish men but many don’t even recognize the concept of men harassment which is also relevant in the same society where rape exists. To understand gender inequality we should know what rights men and women have in India.

Men’s rights in India

India is a country with a lot of religion, customs, and a great history that is spread all over the country. The constitution and laws made in India aim at bringing equality between all communities, gender, religion, etc.  People feel that in the name of equality the law has given undue advantage to women. Our fundamental rights despite given equal rights of men cannot be compared with the women. Gender neutrality is most needed because in every case of rape the men are accused and in many cases they are not the persons who are at fault. Most of the provisions of the Indian Penal Code which provided for the offences against the women indirectly stated the men as the criminal. It is true that in cases like Thakuram and Nirbhaya the men were the offenders but it should not be concluded that in all cases men are the criminals.

One such example of women misusing their horrifying case from Amity, Noida where 2 girls had a parking fight with 2 men. In the extreme of their argument, they asked a gang of 25 to 30 goons to beat up the victims and also filed a false molestation case on them. In the fight, one of the victims was declared dead and the other was kept in the ICU. The men here had no right to defend themselves. It is to be understood that rights are given are women only to protect them and not to shield them and make men as an offender. In 2017 a question arose in the Delhi High Court regarding the legality of the existing rape laws in our country. A Public Interest Litigation was filed in the Apex Court in the case of Rishi Malhotra v. Union of India[i] where it was mentioned to make rape laws gender-neutral and there were no laws to protect men. But his PIL was dismissed by the Apex Court. The law commission recommended to substitute the term sexual assault in place of rape and Justice Verma in his report suggested not to use the term “women” in any sexual offences and use the word “person” such it can become gender-neutral but the Criminal Law Amendment Act 2013 did not change due to the criticisms and restored the gender-specific definition for sexual offences. In the current modern world, men are accused directly without any investigation and in many of the instances when woman complaints against a man it is pre concluded that the man is on the defaulter’s side. In no article or section, there are laws to protect the men.

Women rights in India

Many countries exploited women due to their gender which pushed them to fight for their rights. Some countries did not even give voting rights to women and only during the 1900s the women were given voting rights for which they fought over 2 centuries. The society was healthy and was clear in what they want. The women in those days did not ask for any right for their specific gender nor wanted to take away any right which the men held. Drastically in the modern age, women in the name of feminism want to put down men and prove their supremacy. As stated before the constitutional rights and laws are gender-specific some of the constitutional provisions and legal provision for women are:

Constitutional Provisions

Article 51(A)(e): States to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.

Article 243 (D)(3): States that Not less than one third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat.

Article 243(D)(4):  Provided further that not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women.

Article 243(T)(3): States that not less than one third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality.

Article 243(T)(4): The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide.

Legal Provisions

Legal provisions are made to control the society such that they do not exceed their limits and go into other’s space. Special laws and provisions are made such that no particular community or religion is targeted and discriminated against. Special laws for women are also made such that both working and non-working women. Any legal provisions like unlawful acts are termed under the heading “Crime against Women”. The Indian Penal Code provisions for wrongful acts against women are:

  • Section 363-373- Kidnapping and Abduction
  • Section 302/304-B IPC – Homicide for Dowry, Dowry Deaths or their attempts
  • Section 376 – Rape
  • Section 354 – Molestation
  • Section 498-A Physical and Mental Torture
  • Section 509 -Sexual Harassment
  • Section 302/304-B – Attempts and Deaths related to Dowry

Some of the other Acts and Provisions introduced for the benefits of women are:

  • Immoral Traffic (Prevention) Act, 1956
  • The Maternity Benefit Act, 1961 (Amended in 1995)
  • Dowry Prohibition Act, 1961
  • The Medical Termination of Pregnancy Act, 1971
  • The Contract Labour (Regulation and Abolition) Act, 1976

Important Initiation For women by the Government:

  • National Commission for Women started in January 1992
  • Reservation for Women in Local Self –Government was passed in the 73rd Constitutional Amendment
  • The National Plan of Action for the Girl Child (1991-2000)
  • National Policy for the Empowerment of Women, 2001
  • The Equal Remuneration Act, 1976
  • The Prohibition of Child Marriage Act, 2006
  • The Criminal Law (Amendment) Act, 1983
  • The Factories (Amendment) Act, 1986
  • Indecent Representation of Women (Prohibition) Act, 1986
  • Commission of Sati (Prevention) Act, 1987
  • The Protection of Women from Domestic Violence Act, 2005

Apart from introducing all these laws and provisions, our judiciary system has also played a major role in the rights of women. Some of the cases where the judgment for the best interest of women are:

C.B. Muthamma v. Union of India[ii], the issue raised in the case was that any woman employee has to get written permission from the government before her marriage and also should give in writing that she may quit her job after marriage. The Supreme Court struck down this law from the Indian Foreign Service rules of 1961 and felt this to be unconstitutional and disrespect towards women.

Air India v Nargesh Mirza[iii], the court held that dismissing of air hostess due to their first pregnancy is unconstitutional. Vishaka and Others v State Of Rajasthan[iv], the main issue dealt with was about women facing sexual harassment in their workplace. The court held that any type of immoral or act that reduces the dignity of women is unconstitutional, thus to prevent sexual harassment faced by women the supreme court gave the guidelines and were named Vishaka Guidelines.

All these days women were protected due to their laws and provisions and men were also protected by their ways and by the laws. Everybody in society feels there are only 2 genders which are male and female. There is someone called transgender too in the same society. Gender neutrality does not apply only to males and females but also to a transgender. They are also humans who deserve equal rights and opportunities. In India transgender are considered as a third gender which gives them both civil and criminal status they can have the fundamental rights and enjoy all the provisions which the men and women do. In the year 2018 for the benefit of LGBTQ section 377 of the Indian penal code was decriminalized and they can now have consensual sex including homosexual sex. This was decided in the landmark judgment of Navtej Singh Johar v. Union of India[v]

Certain bills were passed for the right of transgender:

  1. The Rights of Transgender Person’s Bill, 2014 
  2. The Rights of Transgender Person’s Bill, 2015
  3. The Transgender Persons (Protection of Rights) Bill, 2016

4.   Transgender Persons (Protection of Rights) Bill, 2017

Conclusion

Gender neutrality does not mean making your gender superior to others or pulling down another gender. We are living in a society with both males, females and transgender all the 3 has to co-exist and there can be no option of 1 gender not existing the court may recognize the transgender as a 3rd gender but each individual should also feel them as a part of the society. There should be no gender-specific law that makes the male or the female as the criminal by their gender. The legal definition of rape only addressed women many men feel inferior in coming out and telling about harassment caused to them. Thus the legal definition should be changed as there are men and transgender who are also victims of sexual harassment. It is concluded that “no leaves are alike and yet there is no antagonism between them or between the branches on which they grow”- MK Gandhi. No one is alike; accept and respect them as they are.


Questions:

  1. What is meant by Gender Neutrality?

An adjective that is suitable for, applicable to, or common to, both male and female genders.

2. What are the Specific Laws and Provisions which benefits women?

(i) Immoral Traffic (Prevention) Act, 1956

(ii) The Maternity Benefit Act, 1961 (Amended in 1995)

(iii) Dowry Prohibition Act, 1961

(iv) The Medical Termination of Pregnancy Act, 1971

(v) The Contract Labour (Regulation and Abolition) Act, 1976

3. Is Transgender a third gender?

In India transgender are considered as a third gender which gives them both civil and criminal status they can have the fundamental rights and enjoy all the provisions which the men and women do.

4. Does Transgender also have all Rights that men and women have?

(i) The Rights of Transgender Person’s Bill, 2014 

(ii) The Rights of Transgender Person’s Bill, 2015

(iii) The Transgender Persons (Protection of Rights) Bill, 2016

(iv) Transgender Persons (Protection of Rights) Bill, 2017

References

[i] Rishi Malhotra v. Union of India, Writ Petition(s)(Criminal) No(s).7/2018

[ii] C.B. Muthamma v. Union of India AIR 1868 (1979)

[iii] Air India v. Nargesh Mirza AIR 1829 (1981)

[iv] Vishaka and Ors. v. State of Rajasthan SC 3011 (1997)

[v] Navtej Singh Johar & Ors. v. Union of India the. Secretary Ministry of Law and Justice W. P. (Crl.) No. 76 of 2016

[vi] Analysis of Gender Neutrality Laws in India

https://blog.ipleaders.in/analysis-of-gender-neutrality-laws-in-india

[vii] Shweta Kabra, GENDER NEUTRAL LAWS- HOW NEEDFUL IN INDIA

http://docs.manupatra.in/newsline/articles/Upload/3FE150D0-E784-49BD-8328-4134C0E87955.pdf

[viii] Rebecca Rajan, GENDER EQUALITY AND GENDER NEUTRAL LAWS: THE FUTURE OF SOCIAL JUSTICE IN INDIA, International Journal of law and legal jurisprudence studies ISSN 2348-8212: Volume 4 Issue

http://ijlljs.in/wp-content/uploads/2017/12/Gender_Equality_and_Gender_Neutral_Laws-The_Future_of_Social_Justice-_Publication.pdf

[ix] IMPORTANT CONSTITUTIONAL AND LEGAL PROVISIONS FOR WOMEN IN INDIA

http://mospi.nic.in/sites/default/files/reports_and_publication/cso_social_statices_division/Constitutional&Legal_Rights.pdfhttps://timesofindia.indiatimes.com/readersblog/riyable/the-gender-advantage-women-who-misuse-it-men-who-bears-it-5475

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