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IS INDIA READY FOR GENDER NEUTRAL LAWS ?

Updated: Feb 2, 2022



EVENT DATE: 21 DECEMBER


GENDER NEUTRAL: DEBATE SUMMARY

The world is becoming increasingly gender-neutral. Most of Europe and North America and even Asian countries such as South Korea, Bhutan, Kazakhstan and Kyrgyzstan have enacted gender-neutral laws.


Under #genderneutral laws, all genders are equal in the eyes of law. Is India ready to follow suit?


SHWETA KOTHARI(SK): Let us begin by the addressing the bigger question: What does gender neutrality mean? What sort of framework and mindset goes into the making of such laws?


MAJA DARUWALA(MD): I think we should begin by discussing what the term gender neutral signifies; does it mean that everyone in every instance has to be treated the exact same way?


I don’t think even the law looks at it that way. A law has to be extremely nuanced to do justice given the whole context. I don’t see an attack on men. We see some groups of people more victimized than others. It is the responsibility of the state to protect everyone. The constitution itself recognized the presence of bias and allows for laws that favour one gender over another.


SK: Gender neutral is a very idealistic word. In legislative terms, what does gender neutrality imply? Does an absolute gender-neutral law exist in any part of the world?


VAGESHWARI DESWAL( VD): Most of our laws are gender neutral. Only a handful of them are gender specific. We live in a gendered world, and absolute equality of all genders might be a form of injustice.


We cannot deny formal equality, but the reality is far from it. The reality is that ours is a country where girls are killed in their mother’s womb, people risk getting arrested just to get the sex of the child detected, due to son preference. Our socialization is to blame for this. In the gendered society, when we are under the hegemonic grip of patriarchy, absolute gender equality is not advisable, not at this stage.


SK: Carrying that thought further, women are not safe with this country, there have been instances after instances that show that women have been the victim. Do you think this argument still carries weight?


Deepika N Bhardwaj (DB): I have never denied that women are the overwhelming majority of victims in gender-based crimes. But let me give you an alternative thought- the constitution ensures gender equality. Article 15(3) makes special provisions for women, and I completely understand that- but these should not be used to choke men. Every day, there are cases where men are at the receiving end. I am not sure whether we will ever be an equal society, even the US is not there, but they still don’t have gender biased laws. As I listen to painful stories of men, I have to ask when will be the right to time to enact gender neutral? And what do we do about men whose lives are shattered, who are victims of

injustice?


SK: In your assessment, how far do you think are men victims of laws that are not gender-neutral at this point in the country?


SHONEE KAPOOR( ShK): Even if there are 5 men who are sexually harassed, shouldn’t there be a law to protect them? My cause is not that all the laws should be equal for men and women. My cause is that men and women should be treated equally in the eyes of the law.


SK: For the understanding of a layman, when a husband is meted with violence, or killed by their partner at home, there is no cure offered by the law? Where do we stand legally on this matter?


VD: Marriage does not give license to abuse the other, neither for the husband, nor for the wife. The differences are inevitable- but in this kind of traditional setting, it is usually the girl who finds herself at the receiving end. When abuse/ violence takes place in a family, it is very difficult to prove it in a court of law. Yes, men are also subjected to physical, emotional, financial violence, but the majority of victims is still women. The objective of the domestic violence act is to protect women, not punish men.


Moreover, violence has been normalized in our society, and the enactment of the domestic violence ac is to question that norm. I agree that men need more protection, but for that we shouldn’t dilute our existing laws. Instead, we should broaden our safety net.


SK: The idea is that under the domestic violence act, in order to protect the women, the positive discrimination is justified. Does that stand the test of time?


MD: Does it discriminate against men? No. Dr. Deswal has explained the imperative behind the DV act.


The poor implementation of a law is not sufficient reason to remove all laws that seemingly protect women. We cannot deny the huge power imbalance in terms of social, political, economic power. If you look at rape, underreporting is enormous. Our reporting of crime does not measure up to the standards of developed countries. In terms of false prosecution, of course you can get a charge, and it remains very difficult to do- that is because access to justice is a problem for both sides. And that is why a level playing field would be unjust.


Terrible cruelty should be stopped, but the culture of this country makes is laughable for a man to admit that he has be raped. The people who should be protecting us are not prepared to do what is necessary to do so the wrong is righted.


ShK: But is that right? The law is meant to resolve cultural problems- and there should be a law to protect men, even if the incidence rate is less.


DB: During the pandemic, I was approached by a man who was beaten up by his wife. This man went to get an FIR registered- the cops did not do anything and filed an FIR against the man instead. These are the ground realities. The Delhi Commission for Women has gone to say that 25 percent of the calls they get on their helpline are from male victims. Plus, the domestic violence act is misused endlessly.


MD: There is every reason to review the making of the law, and there should be wide consultation and debate before the law is made. The idea of the laws is to give agency, while the actual implementation of law is difficult. Because the court is overwhelmed, there are too few judges/ prosecutors; all of this entirely adds to injustice.


VD: Indian law does recognize sexual harassment of men. Section 354 of the IPC is gender neutral to an extent- with the exception that the man is sole perpetrator. We don’t know those laws which protect men. Another issue that is more precarious, is the leveling of cases against men. Under POSH law, if the woman produces malicious and false evidence against a man, she can be punished. Section 211 of the IPC, enables one who has been falsely implicated to initiate action against false prosecution. False charges is punishable with imprisonment up to 2 years. So we cannot say we don’t have laws to protect

men.


ShK: For Section 193, it is the discretion of the court, to initiate the process to prosecute the woman. In Section 182, it is the discretion of the police. Many times, the authorities withhold these processes. It becomes next to impossible to prosecute a complainant under these sections. Provisions like POSH, which acknowledges false prosecutions should be incorporated in other laws.Plus, have the laws been able to protect women from violence?


DB: Men who are harassed and tortured, can they make their complaints? Can there be a cell in the ministry dedicated to this? Data around men is not compiled, and we are blind in this area. When will people listen to these victims? Can we begin by recognizing the problem?


SK: Should there be a recognition that this is a problem?


VD: We cannot afford the misuse of law, which is an impediment to the women’s movement and should actively discourage misuse of law. We must safeguard laws. I agree that crime has no gender, and we hope to see gender neutral laws one day. But at the moment we don’t have substantive equality.


SK: As a society, we shame the victims into silence. What does this say about us?


MD: I don’t know where to begin on this silencing. The social differences are so great in society, because he silence is the only option for survival. The abuse of power is rampant in our society. We should not make this about only men or only women, but instead turn our attention to injustice. Accountability of state actors to give us good governance is a requirement. The only agenda is justice, under the Constitution.


SK: What about the recourse to justice for the LGBTQ community?


VD: We have section 377 which penalizes non-consensual sex. But it is time to reinterpret these laws, so that all people can be prosecuted, that would broaden the definition of rape.


DB: I think that transgenders should have recourse. There are changes, gay marriages happen irrespective of law, and the law should recognize the laws. We have created a culture where people are being penalized for doing the right thing, and that needs to change.


VD: Each one of us should be a feminist, because to my mind someone who’s not a feminist is a sexist. Feminism talks about equality of all humans. It is about time we stop being derogatory to feminists.


SK: We need to make efforts to ensure actual female participation as well.


DB: We shouldn’t have any knee-jerk reaction, but should seek gradual, deliberative change.

The debate concluded with a consensus that there should be a gradual transition towards genderneutral laws and that we as a society should seek to root out all forms of injustice.



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