GENDER NEUTRAL LAWS IN INDIA – NEED OF THE HOUR

Justice to one or injustice to another?

Written with Yana Kalal & Nandini Parikh

Who would have thought the laws whose very purpose was to protect one from discrimination shall themselves be deemed discriminatory in nature. Before getting into the core of the subject, let us first make clear what is gender neutrality and thereby what are gender neutral laws. Gender Neutrality is the idea that policies, language, and other social institutions such as gender roles and gender identity should stop distinguishing as per one’s gender or sex. One’s sex or gender is no way the hallmark or doctrine to follow a certain set of rules or the roles. Likewise, Gender Neutral Laws are laws which does not discriminate one in providing trial and justice on the basis of their gender.

Now, you might be wondering how can laws discriminate on the basis of gender; they are the most sacred, fair and just institution human kind has ever developed. As much as we all want to believe it, so is not the case. Even at the dawn of third millennium, our judicial system is not advance enough to provide justice with a blind eye (what an injustice to the blind justice lady). Not that all laws are unjust and discriminatory (at least in India) however, there are a number of laws which do not provide equal justice to all the genders. Below is the list of such discriminatory laws to provide you all with some concrete insights: –

1. Only a man can be booked against adultery charges – As per the section 497 of the Indian Penal Code, if a man indulges in sexual intercourse with the wife of a friend or acquaintance without the permission of the husband, the man is guilty of the offense ‘adultery’ under which he can be imprisoned for a maximum period of 5 years. But, wait! What about the woman? Well, according to the court of law a woman is incapable of making sexual choices therefore she can neither be punished nor is guilty under law’s eyes.

2. Consent of a girl under 16 not valid for sexual intercourse – According to clause (6) section 375 of IPC, a woman under sixteen is considered incapable of giving consent for sexual intercourse and hence the guy even if of the same age would be liable for rape charges if accused.‘Let a hundred guilty be acquitted, but one innocent should not be convicted’ these are the very words of our own judiciary. What should we call these laws then, hypocrisy?

3. Section 498A, Dowry Prohibition Act – This section states that mere demand of dowry is a punishable and unbailable offense. It was done so to make dowry law all the more stringent so as to eradicate the ill practice from the society. However, the law does not ask for any evidences before the arrest to prove if the demand of dowry has been made. The very law which was brought to empower women is being used by women to overpower men. So, remind me again if the saying was ‘innocent until proven guilty’ or ‘guilty until proven innocent’?

4. Legal age of marriage – As per the Prohibition of Child Marriage Act 2006, the minimum legal age to marry for men is 21 years whereas for women it is 18 years. Both the individuals are equal except for their biology so why this discrimination over age? It’s high time Indian judiciary needs to reassess its age-old laws and bring the much-needed change.

5. The Trans gender’s Act, 2018 – This bill was supposed to be progressive and fair to the trans community. However, it came out to be the opposite. As per the act, any sexual misconduct against any trans person will lead to imprisonment of 6 months which can be extended till 2 years. However, in case of woman, the same sexual violation amounts to a sentence of minimum 5 years. Progressive and fair? Not really!

And this is not it, you might get astounded to know that there does not exist a single law to protect sexual harassment against men. In other words, Indian judiciary refuses to believe that even men can be sexually violated. If this doesn’t worry you, I am not sure what will. Indian Constitution and judicial system, from the very beginning are credited for being liberal and protecting the rights of its citizens irrespective of the gender. Feels like it’s time to go back to the basics.

Article 14 of the Indian Constitution – “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”