Since time immemorial the row over equality appears to continue unabated, forcing its way through the Indian Constitution. However, the coin seems to have lately flipped towards the neutrality of the societal frameworks commonly regarded as gender. The mindset rendered by the use of ‘gender’ is mostly that of victimizing one and shielding the other. Yet, what must be acknowledged is the absence of a gender in crime. When the offence does not assume a gender, neither should the punishment. As defined by the European Institute for Gender Equality, legislation that is drafted in universal terms, ignoring gender-specific situations and power relations between women and men that underpin sex-and gender-based discrimination is eligible to be categorized as gender-neutral. Weaponizing one’s gender to exploit the legal benefit conferred upon oneself has lamentingly found its roots intertwined with the civil and criminal laws of India.
A vast majority of the substantive and/or procedural explanations of laws in India grant the impression that violence, unless proved otherwise, is male-generated, simultaneously affording their counterparts, a shield under the guise of their mere gender. Should historical statutes serve as the grundnorm, neutrality shall have a hard time finding its place. The decorated sections of the Indian Penal Code served right in its time through sections like 354, 375, 498A among many others, which safeguard the female gender enormously, however, the said code, albeit unintentionally, also instigates an anti-male sentiment. While the female gender finds solace through the many and wide-ranging provisions, the male gender fails to seek redress because the possibility of crimes against the same is virtually nullified by the law.
Neutrality wants for non-partisanship. Legislations, at the very outset, mention ‘he’ to represent an individual, while through the layers, shift the balance either toward female-centric laws or male-centric laws. While it must be evident to the naked eye that there persists an even greater divide when laws for females are weighed against laws for males, it is not equality in the implicit benefit rather it is neutrality in consideration that is advocated for.
Indian laws, on one hand, hypocritically force the male counterpart to shoulder their responsibility through the conforms of maintenance and alimony, on the other, point assuming fingers without a second’s thought towards the same party in cases of cruelty with only one gender eligible to be the victim. A perusal of the prevalent legal framework is evident of positive discrimination towards women which is understood unanimously to be constitutionally permissible, given the historical treatment of the now-favored gender. However, in the spirit of equality, Section 377 grants recourse to men and women, both, in cases of victimization through sexual harassment and/or abuse.
In coming a long way from women being considered as a property under the ownership of their male counterpart to the two genders being granted equality of status and opportunity, at least in theory, the struggle now subsists for a stance on the part of the legal institutions that is neutral in its perspective governing the gender of the individual whose life it holds the fragile power to alter. Passing draconian legislations in the name of empowerment of the female gender thereby disguisedly condoning inequality blatantly disregards the authority of Article 14 whereby equality before law is guaranteed to a person and not to the so identified binary genders. Additionally, enabling one gender by means of depriving the other neither adheres to the goal of equality nor neutrality. The privilege thus far conferred upon the female gender needs to be checked in the face of ground realities.
Amongst the contraptions by means of which the state of India defines civil personhood, sexual (gender) identity is a vital and unavoidable class. The categorical descriptions embodied in Indian legislations are derogatory of the third gender who struggle to find recognition through the sacred text of the Constitution. The wide-ranging disparity between affirmation and implementation, between tolerance and acceptance is conspicuous through the incessant debate over going ‘against the order of nature’ and the tenacious Article 377. Gender-neutrality does not favor any of the identified (or unidentified) genders. In a seldom exhibition of such neutrality, a non-partisan lexicon was adopted by the legislature whilst drafting the Prevention of Children from Sexual Offences Act (POCSO) of 2012 whereby a child has been defined as any person below the age of eighteen years without specifying the gender of said child. Yet the moot question of acknowledgment through implementation lies in the praxis, not in the literature.
However, the elephant in the room is not whether one gender has been favored over the other but whether India is ready for the blanket of gender-neutrality? With its history penned for, by, and with patriarchs, is equality equitable?
For the reasons that justify reservation also underpin equity over equality and neutrality. The progress of a nation is not marked by its acceptance of new notions and beliefs but by the extent of application and acclimatization in the background of its own soul and spirit. Moving on might not necessarily be congruent with moving forward.
Neutrality of gender in legislation, at its worst, might prove to be just another outlet for thrusting upon the already victimized an even greater weight of the word. Unwarranted use of gender-neutral laws might fire vengeance or force a backward move over the progress of the country via affording a garb to root realities. Whilst emphasizing the evolution of thought into action, a facet of such neutrality in the form of malicious prosecution based on deep-seated patriarchy, which formed the foundations of the ‘safe-haven laws’ for the female gender, must also be paid heed to. The tales of time are testament to the journey traversed by the erstwhile second-sex to be recognized at face value while gender-neutral laws are fraught with the alarming possibility of banishing them behind bars. India’s past is paramount to planning its present and future, and succumbing to peer pressure at the cost of its communal fabric does not necessarily strike one as a favorable alternative.