India, just like any democracy, prides itself on the foundation of equality. Yet providing equality in a democratic society is not a simple task. It encompasses multiple latitudes, out of which an important one is the concept of gender centric and gender neutral laws. This entire article will delve into what these two topics mean on paper and in real life, leading to whether there is a gap in the societal laws that can be fixed by gender neutral laws. Just as times change, so must our understanding of justice and equality. The dichotomy of sex-based vs sex-neutral laws has come under closer scrutiny. Laws that are framed based on gender, women favoring, and men stereotyping, can be protective of women and yet assume that men are presumptive perpetrators and women presumptive victims. In contrast, gender-neutral laws support parity in legal protection and ensure that the law provides the same level of protection to any individual, man, woman, or gender-diverse individual.
This article problematizes this tension by examining the legal, social, and constitutional challenges in the light of the gendered laws in India, with specific reference to women oriented domestic violence laws. By looking at data, case law and modern-day examples we want to answer whether or not the laws on the books today are meeting the realities of all genders, or if these laws are instead leaving some people vulnerable and unprotected.
Constitutional and Legal Framework
As we examine laws, it is crucial to clearly understand the concepts of gender neutral and gender centric and their ideal implications. Gender centric laws are those legal frameworks designed to specifically address and protect the unique needs and challenges faced by a particular gender. This perspective automatically assumes the gender of both the victim and the perpetrator involved in the crime. In most cases, it automatically assumes the woman is the victim of her husband’s actions, leaving no room for the opposite perspective. Gender-neutral laws ensure that all individuals are treated equally under the law, providing the same legal solutions to their problems, regardless of gender. The debate centers on whether gender-centric laws are effective or if there is a need for gender-neutral laws to address the gaps overlooked by these laws. We will be looking into this aspect with special emphasis and focus on women centric domestic violence laws in India.
Before we explore the legal framework of women-centric laws, it is essential to understand their origins and the rationale behind them. The primary objective of these laws is to combat violence against women, both physical and mental, promote financial empowerment for women, and prevent workplace discrimination. These crucial aspects stem from cultural and historical norms that have historically placed women at a disadvantage compared to men, particularly within an extreme patriarchal society. This imbalance has persisted since ancient times, when men were typically the breadwinners and women relied heavily on men for their livelihoods. When this disparity was brought to light, it was decided that instead of dwelling on the past, we should focus on changing the future. This led to the establishment of legal protections for women through laws that specifically addressed the unique challenges they faced.
The women centric laws that have been established through time. The beginning of the same can be traced to the Indian Constitution, where equality is a right under Article 14 and Article 15(1) prohibits any discrimination based on sex. Yet this is a limited right by restrictions placed upon by Article 15(3), which clearly gives the parliament the right to enact any special provisions favouring women. Ideally, this gave the basis for the parliament to bring in gender centric laws. Article 15 (3) is the backbone of women-centric laws in India.
Looking at the legal framework that has been established over the years, we can identify a few important legislations. Bharatiya Nyaya Sanhita, previously the Indian Penal Code, being the foremost legislation for criminal acts, criminalises certain actions towards women. Sections 63 and 64 of the Bharatiya Nyaya Sanhita criminalise rape. Section 74 criminalizes assault to outrage the modesty of a woman. Section 78 criminalizes voyeurism and stalking.
We have affirmative action acts and protective action acts, in my opinion. Legislations like the Maternity Benefit Act of 1961 stand as a beacon of support for new mothers, offering essential maternity benefits that nurture the well-being of both mother and child during a pivotal time. Similarly, the Equal Remuneration Act champions the cause of fairness in the workplace, striving to ensure that every individual, regardless of gender, receives equal pay for equal work. Together, these transformative acts pave the way for a more equitable society, fostering a sense of security and respect for all workers. These are examples of affirmative action acts.
The landscape of protective legislation comprises key acts designed to safeguard women’s rights and dignity. The Protection of Women against Sexual Harassment at the Workplace (POSH) Act stands as a crucial pillar, empowering individuals to file complaints against harassment in professional settings. Similarly, the Indecent Representation of Women (Prohibition) Act of 1986 seeks to combat the objectification of women in media and advertising, affirming their right to be portrayed with respect. Additionally, the Immoral Traffic (Prevention) Act of 1956 targets human trafficking and exploitation, ensuring that victims receive the protection they deserve. [1]
The heinous crime of dowry deaths is addressed through stringent measures under the Dowry Prohibition Act, which aims to eradicate dowry-related violence and protect women from such barbaric practices. Moreover, the Protection of Women from Domestic Violence Act 2005 provides a robust legal framework to shield women from domestic abuse, offering them the means to seek justice and support. Collectively, these laws represent a firm commitment to fostering a safer and more equitable society for women.
Social impact and limitations of gender specific laws
The above-mentioned acts and legislations have played a crucial role in developing the society, making it a protected and secure environment for women. Yet the sad reality of life is that criminalizing an act doesn’t completely stop people from committing the crime. While specific crimes against women haven’t stopped, they have drastically reduced from the past. Moreover, the crimes discussed below are primarily towards women but also towards a large section of men.
Through the data released by the National Crime Records Bureau (NCRB) we can see that from (2017 to 2022, more women (25,197) than men (21,579) have died by suicide due to marriage-related issues. Moreover, 52.5% of all female suicide victims in India in 2022 were housewives. However, it is often claimed that more married men die by suicide because of false DV cases. In fact, there is no category of suicide due to false DV cases in the NCRB. The category of marriage-related issues includes non-settlement of marriage, extra-marital affairs, dowry-related issues, divorce, etc. And it is family problems (not related to marriage) that constitute the biggest cause of suicide for men in India, for the period of 2017 to 2022, forming 30.8% of total suicides by men as compared to marriage-related issues (3.4%).[2] This data clearly shows that women need more protection than men, but it does not lead us to conclude that men don’t need any protection at all. And that is our main focus through this article.
Misuse and need for balance
From the data, we can understand that while women-centric laws may not be ideal, they have played a major role in safeguarding women while empowering them at the same time. The purpose of this article is not to challenge the validity of current women centric laws, but to encourage our society to expand its horizons by including gender neutral laws in a thoughtful manner. This idea of gender neutral laws does not and should not be confused with or pitted against laws for affirmative action for women. It is important to understand that these are two different fields that protect women in two different ways that do not overlap.
While the crime rate against women is higher than that against men, currently, these gender centric laws are often misused rather than effectively employed. If lawmakers are introducing new legislation to support women, they should ensure that the repercussions do not permanently harm a man’s life.
The laws which are most famously misused are Section 498A of IPC, inculcated under Sections 85 and 86 of BNS, and Section 376 of IPC. Since the BNS has been introduced recently, for the purpose of this article, we will be discussing the IPC sections. Section 498A deals with punishing the husband and his relatives for cruelty against married women. It is crucial to note that in the Indian Penal Code and now the Bharatiya Nyaya Sanhita, there is no mention of cruelty towards men. It has been explicitly stated that only women can be subjected to cruelty. Moreover, this offence is non-bailable, non-cognizable and non-compoundable. Thus, all adding to putting the man in question in a more disadvantageous scenario. While it is true that in most cases the man is the perpetrator of the crime, we cannot turn our backs on the cases, though they may be few in number, where the man is the victim. That would result in a grave injustice to our democracy.
Moreover, we have seen a huge rise in false cases registered against men for domestic violence. This was addresssed in the landmark case of Arnesh Kumar v. State Of Bihar[3], where the supreme court analysed the report of the National Crime Records Bureau, 2012 Statistics which stated that while the rate of filing charge sheet under Section 498 A was as high as 93.6% the conviction rate was as low as 15%. They thus instructed the police not to automatically arrest when a case is filed under this particular section. A more recent statistic of 2020 by the National Crime Records Bureau, according to its Volume 1, stated that there were 18,967 cases tried under Section 498A, of which 14,340 led to acquittal and only 3,425 resulted in a conviction. Thus, this section established the guilt of the accused before it is proven, thus violating the norms of natural justice, which says that the accused is presumed innocent until proven guilty. If this section used the phrase any person instead of any man, it would open it up to men also being victims and thus claiming relief.
It is important to recognize that the situation regarding male dominance and crimes against women has changed significantly over the years. We are now at a point where certain laws may no longer serve their intended purpose, instead, they could be harming men who face false allegations and wrongful accusations. Current legislation primarily protects women from such crimes, but it does not offer the same level of protection to men. This raises important questions about the violation of the principle of equal protection for all individuals under the law.
Cases of falsifying complaints, such as that seen in K. Srinivas v/s K. Sunita[4], where it was held that such cases of falsifying complaints will constitute matrimonial cruelty, which lands them a ground for divorce under Hindu Marriage Act, 1955. Similarly in Mamta v/s Pradeep Kumar it was held that there was sustained cruelty committed by the wife upon the husband over a period of time and it was concluded that the husband was entitled to divorce under Section 13 of the Hindu Marriage Act, 1955 on the ground of cruelty, the petition was accordingly allowed. This was a positive judgement.
This topic was particularly brought into the public’s view with the very recent case of the suicide of Atul Subhash in Bengaluru.[5] He committed suicide, alleging a matrimonial dispute. left behind a video recording and a lengthy suicide note stating his suffering. He blames his estranged wife, her family and the whole Indian legal system, which made his life miserable, making suicide a seemingly convenient option. This particular case highlighted the blind spot of our legislature, where the only solution the husband could find to the cruelty by his wife was suicide. There were no laws in place that he could have taken shelter under. The Atul Subhash case also highlighted a very important aspect of the difference between dowry and alimony deaths. While the logic behind both dowry and alimony can be argued as being different, they both result in money being paid from one spouse to another and while there is no punishment for alimony death, there are severe consequences for dowry deaths.
Section 354A of the IPC, which is now Section 75 of the Bharatiya Nyaya Sanhita, talks about if a man commits any of the offences such as physical contact, demand or request for sexual favours, making sexually coloured remarks, showing pornography to a woman, he would be subjected to punishment. Similarly, under sections 354C and D, while defining voyeurism and stalking respectively, it has been declared that these offences are inflicted by a man upon a woman. This particular section came into the limelight when music entrepreneur Vijay Nair was serially cyber stalked by a woman, and he had no recourse under the current indian laws.
When we take a look at the The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, we see that while the preamble of the act enumerates this right as a ‘universally recognised human right’ indicating that it is applicable to all humans, the act itself deifnes the phrase ‘aggrieved women’ as if it is certified that men and transgenders are devoid of any victimization. There is a lack of any legislation for sexual harrasment of men or even transgenders at workplaces. This is also supported by statistical data that shows us that male suicides in workplaces are four times more than female suicides in workplaces. There have been multiple cases where men have been denied legal remedy due to a restrictive wording of the law, as seen in the case of Anuj Garg v. Hotel Association of India (2008) and Priya Patel v. State of Madhya Pradesh (2006). The judiciary has time to time, stood up to this and reconsidered the view as seen in Smt. Sudesh Jhaku v. K.C.J. (1996) which highlighted the protection of male rape victims, yet this is a rare instance. [6]
A prevalent yet unspoken issue is that when a man is acquitted of any charges, he often faces societal backlash as if he were convicted. This reality is something that every citizen should strive to change. Individuals should not be judged by the legal system and by societal norms. In such situations, the importance of legal literacy becomes increasingly vital.
Attempts at legal reform
There have been attempts to introduce the concept og gender neutrality into society mainly through the Bill on Gender Neutral Laws, 2019. This was started through the case of Criminal Justice Society of India v. Union of India, where petition filed by NGO seeking to amend the rape laws and turning it gender neutral. The same was brought up in the Rajya Sabha in a proposed amendment to change any wordings to any man or any woman to any person in the Indian Penal Code, the Criminal Procedure Code, and the Indian Evidence Act. The same was not passed due to heavy opposition from the central government on the grounds of statistical data favouring women. The SC however, did bring in neutrality in gender centric laws by decriminalising adultery. [7]
Another note worthy case is Sakshi v. Union of India (1997)[8], where the SC forwarded the matter concerning male rape victims and the gender-neutral application of laws to the Law Commission, which resulted in the entry of the same in the Law Commission’s 172nd Report. This led to the introduction of the Criminal Law Amendment Bill of 2012, which marked a significant development.
Most importantly, the Criminal Amendment Bill of 2019 made a prominent attempt to introduce gender-neutral language in Criminal law. It is grounded in the principle established in the case of Criminal Justice Society of India v. Union of India (2018), where the Supreme Court emphasized the necessity for gender neutral legal provisions concerning rape and other offenses, urging the Government to take it into account at least once. The Bill is also informed by international agreements such as the Universal Declaration of Human Rights, 1948, which seeks to uphold all human rights related to freedom and equality. Through these adopted principles, the Bill intends to render Indian criminal laws more inclusive of gender and adaptable, aiming to deliver justice even in the rarest of cases.
Benefits and challenges
The crux of the matter is that Gender-inclusive laws enhance awareness of various concepts associated with different gender identities and sexual orientations. It majorly eliminates any distinctions based on gender or sex while addressing the challenges faced by all genders without overlooking them. In a progressively gender-inclusive and empathetic society, they will no longer endure the injustices they faced, as historically, their gender has been linked to the offense rather than the victim. This can be accomplished by removing all legal rules that restrict the applicability by specifying the gender of the involved parties.
However, implementing this concept will be a hard task with the major risk of it being misused. Firstly, it should not result in the revocation of legislation that protects women. There is a possibility that male offenders or their partners in crime can exploit them to lodge counter complaints, pressuring female victims to withdraw their allegations. Struggling with several lawsuits may be too expensive for families who cannot afford to hire an advocate for various cases. Consequently, the enforcement of gender neutral rules might exacerbate the situation rather than offer any advantages to society. In a country like India, we remain distant from achieving complete gender neutrality in domestic violence situations, particularly given the reality that most victims and harassed individuals are still women in society. Exercising gender neutrality in domestic assault or violence cases could result in misuse, allowing the offender to oppress women through emotional coercion and torment.
Way forward
In conclusion, while gender-specific laws are necessary, they must not inflict harm on the opposite gender. Predicting the gender of either the victim or the perpetrator contradicts the principles of equality enshrined in our constitution. We have examined various existing laws that have placed specific genders at a disadvantage. Our analysis has covered the motivations behind these laws, their current impact on public perception, supported by statistical data, and instances of misuse that underline the need for gender-neutral legislation. Additionally, we have discussed the ongoing struggle for these neutral laws, highlighting both their benefits and challenges.
Throughout this article, we emphasize that even if a problem affects only a small segment of the population, it does not render it irrelevant or should not be overlooked by the government. Neglecting such issues undermines the spirit of democracy, as every citizen deserves equal respect and dignity. The deprivation of rights for any individual is as serious as if it were happening to a larger group. The case of Atul Subhash has significantly raised awareness about this issue among our generation, and it is our aim to shed light on an area of society that requires improvement. We strive to ensure that no one else has to endure a situation like Atul Subhash’s and that offenders have access to legal remedies when faced with similar circumstances. It is important to note that with the newly introduced BNS, BNSS and BSA we have seen a great improvement in gender neutral laws mainly for sexual offences, while we must commend our progress, there is still a long way to go.
About Author
Vianca Venkatesh, a law student at Symbiosis Law School, Hyderabad, is an enthusiastic legal learner with a keen interest in Corporate, Criminal, Civil, and Constitutional law. Passionate about understanding the intricacies of legal systems, she actively seeks opportunities to explore diverse legal fields and deepen her knowledge through writing, research, and hands-on experience.