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GENDER-NEUTRAL LAWS - THE INDIAN STORY

Manasi Kamble makes a strong case for transitioning to gender-neutral laws in India.


The constitution of any country is the supreme power of the nation. The Constitution of India is protected by the laws stated in the constitution. It protects their rights and provides justice, ensuring the harmony and prosperity of the nation without discrimination based on class, religion, colour, sex or any other status. The constitution has been in place for decades, so it has many loopholes and this one we will discuss more discriminatory laws, especially the laws against harassment and rape. Indian law must change according to the needs and requirements of its subjects. History proves that certain laws, promulgated about the safety and well-being of women, have been misappropriated and that the legislature and the courts have intervened to remedy the ills. One such example is the gross violation of Section 498A of the Indian Penal Code.


Over the past decade, Feminism has become a powerful vocal force against powerful women around the world. As a result, many of the Laws and Regulations were changed or altered to ensure the safety and advancement of women. On the one hand, feminism around the world can improve many lives, on the other hand, they create a huge barrier between sexes. Feminism, by its very definition, is equal between 'all' sexes. But it failed to show balance to some degree. It was once a women's war against men, making men the main subject of their rights, while the Patriarchy is the only case.


Even though it is difficult to believe in other people, patriarchy and cultural ideas affect men as well. The society in which we live sees men as abusers and women victims. It does not allow or encourage male victims to talk or share information as female victims are supported in their struggles. The fact that talking openly about such incidents can also make a man a laughing stock to his colleagues, is another barrier to exposing similar incidents. The fact is, India's laws on sexual harassment do not protect men. Existing laws, issued on the principles of equality and justice, do little to protect the male sex from sexual harassment in the workplace by female colleagues.


The centuries-old mentality sees men as abusers and the same is reflected in the laws, against sexual harassment.


The legislature enacted the Sexual Harassment Act in the Workplace (Prevention, Prevention and Correction), 2013 aimed at protecting women in the workplace. Amendment submitted to the Indian Penal Code, 1860 (IPC) Section 354 (Assault or criminal force against a woman to provoke her dignity), Section 354A (Sexual harassment and punishment of sexual abuse), Section 509 (Word, touch or act intended to insult a woman) 375 & 376 (Rape and Punishment for Rape), women are more focused and do less to provide any male protection to a female abuser.


As per the guidelines set by the Honorable High Court in the case of Vishakha and Ors. vs. State of Rajasthan & Ors (1997) 6 SCC 241, sexual harassment is defined as:


Such unacceptable sexual behaviour (either directly or indirectly) includes:


a) physical contact and development;


b) a request or request for sexual favours;


c) sexually explicit statements;


d) viewing pornography;


e) any other unacceptable or non-verbal behaviour of a sexual nature.


The above description of sexual harassment is neutral. However, the court was eligible for the above, noting the following:


"When any of these acts are carried out under circumstances where the victim of this behaviour has a reasonable concern about the victim's employment or employment that earns a salary, or a medal or voluntary, either in government, public or private business. It is discriminatory, for example, if a woman has good reason to believe that her opposition would bring her disgrace to her employment or career, which included employment or promotion or that it creates a hostile environment.


Surprisingly, the recommendations of the Justice Verma Committee, which was set up to propose changes to the sexual harassment laws of 2013, regarding sexual neutrality in sexual offences, have not yet been included in the Amendment Act, 2013.


Taking a women-centred approach to sexual harassment in the workplace, the legislature came out with the Sexual Harassment Act at Work (Prevention, Prevention and Correction), 2013, which begins with the definition of "Abused Woman". Section 3 of the above-mentioned law states:


3. Prevent sexual harassment. - (1) No woman shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.


The comparative US Equal Employment Opportunity Commission (EEOC) defines sexual harassment as "Unacceptable sexual acts, requests for sexual intercourse, and other verbal or material sexual activity" on the job. "


The above description of the EEOC is completely neutral in gender and has not avoided the harassment of men by women, in the workplace. There are significant differences in the definitions used when drafting laws targeting women in India and similar laws in the US.


A male victim of sexual harassment in India, for example, when the issue is raised, she is not only a victim of words hidden by male peers but also fears that a female abuser may benefit. Laws focusing on women, can turn the tables and portray a male victim as a perpetrator.


Although data on male sexual abuse in India is virtually nonexistent as most of those cases were not reported, the numbers could be very concerning.


US Equal Employment Opportunity Commission (EEOC) defines sexual harassment as


"Unacceptable sexual acts, requests for sexual intercourse, and other verbal or material sexual activity" on the job. "


The above description of the EEOC is completely neutral in gender and has not avoided the harassment of men by women, in the workplace. There are significant differences in the definitions used when drafting laws targeting women in India and similar laws in the US.


A male victim of sexual harassment in India, for example, when the issue is raised, she is not only a victim of words hidden by male peers but also fears that a female abuser may benefit. Laws focusing on women, can turn the tables and portray a male victim as a perpetrator.


Although details of male sexual assault in India are virtually nonexistent as most of such cases go unreported data from the US Equal Employment Opportunity Commission shows that about 16.5% of the complaints of sexual harassment the commission receives annually, come from men.


The Supreme Court in 2018, dismissed a Civil Interest Case that seeks sexual neutrality in cases such as rape, sexual assault, irritability, harassment, and voyeurism with the following recognition:


"Laws come as a response to social and personal ills. These sections focus on abuse and Parliament has recognized a woman as a victim. We cannot ask Parliament to legislate."


A few years ago, the #MeToo organization took over the world. The organization was instrumental in violating the old law of victimization and in encouraging women around the world to raise their voices against unwanted sexual acts. The shared stories of humiliation faced by women, worldwide, in the patriarchal, male-dominated society form the basis of this movement. It provided victims with a platform to talk openly about their plight, which helped to raise awareness of sexual harassment, especially in the workplace.


While the organization has succeeded in bringing about global unity and highlighting the issue of gender development that women everywhere are facing, the concept of #MeToo is not limited to women alone.


The centuries-old mentality sees men as abusers and the same is reflected in the laws, against sexual harassment.


The promise of equality and equal protection under the law contained in Article 14 of the Constitution, seems to have lost its value to our legislators when it comes to writing laws on sexual harassment. Undoubtedly, the Legislature or the judiciary does not intend to discriminate against a person who has been sexually abused because of his gender, but unfortunately, there is little or no recognition of men as victims in this matter.


Neutral sexual harassment laws are a requirement of the hour and should be promulgated by the government to eliminate any unfair discrimination based on gender and should provide equal protection for all genders. However, the delay in the same declaration may be due to a lack of “public and collective cry” as noted by the Supreme Court while overturning the PIL of gender-neutral laws.


Concerning facts about women's safety and the necessities under which the laws were made aren't the issue but if the most populated gender is not protected then the argument about the other minority gender's protection and safety is a far more devastating question.


After the removal of section 377, it is legal to have sexual orientations between the same sex, therefore protection of these genders and sexual orientations has to be the responsibility of the nation and its constitution. Rape or harassment of any kind, after legalising Section 377, is not limited only to the two genders.


As a society, it should be inevitably understood that it's not the gender who plays predator or prey. If encouraging the victims to come out and stand up against the crime they have faced works to make society a better place, then the entity or power protecting that society should take over it as their duty to resolve this issue. When the laws are gender-neutral, that is if they can be applied to any gender's protection from crime, it would help change society for good. Gender-neutral laws give every gender an equal platform and that would help reduce misuse of laws and crime.

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