Gender biased Criminal Law in India
(Faculty of Law, Delhi University)
For quite sometime, India has been fighting the war for protecting the rights of women and what is imperative is that we should ensure that the rise in the statistics is only because of actual occurrence of the crime and not because of abusing of the laws that is made to safeguard the modesty of women. We are not denying the fact that women are the prime victim in most of the cases, but it does not require the ignorance towards the men due to injudicious use of such laws that are in force.
Due to the status of women in the society during olden days, these pro-women laws and legislations have been justified for so long. However, it is important to accept that time has now changed and the Constitution which India has provides that every human being is equal to one another. Having the World’s longest written Constitution and being the largest Democracy in the world, people adhere to these Constitutional values in India such as individual liberty, Social justice, rule of law and fundamental equality that is of utmost importance.
Gender-specific laws has been redefined by Gender-neutral legislations, in which law is developed to protect all individuals equally and to safeguard their rights without any distinctions of gender. With increase in crimes of all different types and an increasing in rate of such crime and all the individuals in the society being equally vulnerable, it is just and reasonable to have a law which is all inclusive in nature and which recognizes the crime and the victim irrespective of their gender. For this Gender-neutral legislation to come into force, strong oppositions have been raised by various feminist groups and the women activists on the ground that it will shift the attention from sincere female victims of the crime to the false complaint against them. Also, it was objected that these gender-neutral laws will do more harm than good and will not be able to serve the purpose for which it is being made i.e., to protect both the genders equally.
But this theory was debated by the arguments that by making such gender neutral legislation, it will not eliminate the crimes altogether but will only help further to normalize the reality that even men face the same hardships and suffer just like women and therefore everyone should be in the equal position to seek the protection under the Judicial systems. The male victimization should be considered equal to the female victimization by eliminating the patriarchal attitude and the Taboos, and this starts by establishing the legislations which is predominantly inclusive of all the genders. Men should also be able to come forward with their complaints and grievances only after we have successfully and effectively normalized all the offences that are believed to be committed by men solely against the females.
The Justice Verma Committee report in the year 2013, stated that “Since the possibility of sexual assault on men, as well as homosexual, transgender and transsexual rape, is a reality, the provisions have to be cognizant of the same” but this hope of reforming the provisions of the criminal laws did not last for very long as various feminists organizations raised objections to their report and recommendations, and consequently they came forward to not to introduce such a law in the country and therefore The Criminal Law (Amendment) Act 2013 was delivered without taking into the considerations the recommendations of the committee.
Sexual assault and abuse against men does not receive the importance it deserves because these topics are inadequately researched and studied. The primary reason behind the fact that such cases are rarely reported is that there is a shared disbelief that a real man cannot be abused or sexually assaulted. Therefore, there is lack of awareness of crimes that can be committed to men by females very well.
Legislations that are currently in force penalizes only one gender i.e., males for the offences such as sexual assault, adultery, stalking, voyeurism, rape, dowry deaths, domestic violence, harassment at the work place, etc. The enactment of these pro-women laws is evidently not based on any scientific results so as to justify why they penalize only a single gender because these laws were initially enacted at the time when there was disparity amongst the people who lived in our country. But now, in the present time, what we have to determine that who is actually being troubled and suffering because of these lacunas in our legal system.
Therefore we have to analyze following legal provisions by discussing the relevant judicial precedent and the future steps to ensure better implementations and to avoid any misuse of this power:
1. Rape (section 375 of the Indian Penal Code of 1860) and false allegation of Rape
2. Domestic violence and cruelty(section 498-A of the Indian Penal Code 1860) under criminal Legal System
3. Provisions related to sexual harassment as under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
4. Maintenance (section 125 of the Code of Criminal Procedure, 1973)
The Existing Legal Provisions - A Critical Analysis
Women empowerment and Gender-equality, both are the fundamentally basic values and the criss-cross issues that have been widely recognized in the recent times. There is no doubtfulness as to the fact that sexual abuse in any form or manner needs to be strictly condemned. It would mean to disrespect the freedom and dignity to which every individual has birthright to, by tolerating such conduct.
Sexual assault, Rape, Cruelty and Harassment are the acts of grave concern, not only because they give psychological, physical and emotional trauma to the victim but because such practices are gradually being tolerated by the society which is presumably linked to the rule of law.
The right to live with human dignity. Right to equality and the right to choose the work, trade or profession are the basic rights and fundamentally gives protection from any kind of assault and harassment. This is because the Indian Constitution guarantees fundamental freedoms to all the citizens irrespective of their gender.
Importantly, The Preamble to our Constitution ensures for Social, Economic and Political Justice, which would initially include gender justice, freedom of expression, thought, belief, faith and religion; equality of status and this equal opportunity would again strengthen the concept of equality: whereas fraternity provides for citizens to treat one another with dignity and mutual respect, regardless of their gender.
1. Rape and False allegation of Rape
“A murderer kills the body, but a rapist kills the soul”- words said by Justice Krishna Iyer.
Though the universal belief is that the victim of rape is commonly a woman, but The World Health Organization estimates around the Globe 12-16% of men are victims and have been reported to have a past history of some or any form of sexual abuse during childhood. And also the reports has acknowledged that such data is of mostly developed nations. But there is no statistics or any other data officially present in our country of some categories of such sexual assault on men. In India, the assault on children includes both boys and girls, has been categorized as sexual assault on children in accordance with the POCSO Act 2012. What is more problematic to us is that the absence of such data not only shows the lack of initiative to protect the rights of men in India but also illustrates the ignorance of the state and the society towards the pervasiveness of such crimes in general.
In the Indian Legal System, the ideology that ‘men can be raped’ has found an unsound position. Rape is defined under Section 375 of Indian Penal Code 1860, an offence done by man to a women. So unfortunately, the legal definition given by IPC provides that rape cannot be committed against men.
“Rape is an accusation easy to be made and hard to be proved and even harder to defend by the party accused” – Quoted by Lord Chief Justice Mathew Hale.
The society by its attitude has provided ample of reasons to lie about rape and sexual assaults on ‘women and rape’ to mask the unchastity of such women. Unfortunately, it can be difficult to prove the accusation of a man against a woman, whether it is in the response to the woman’s accusation or not. As The rape of men is still a taboo.
However, in Girdhar Gopal v. State 1953 CriLJ 964, the Court held and has brought a wide angle interpretation of the section 354 IPC by saying that the offences under section 354 IPC can be committed by any man or a woman who has the necessary intent to do so. Meaning that not only a man but also a woman can outrage the modesty of an another woman by using criminal force or can assault with necessary knowledge and intent. In this case, a notable argument has been brought up that the Indian Penal Code,1860 has not focused on making of such a law that recognizes and also penalizes any act of using criminal force or assault done by a man or women to any ‘man’ with intent to ‘outrage his modesty’.
After the parliament has adopted stringent laws to prevent any sort of sexual harassment against the men, the Delhi Commission of Women (DCW) has showed a report which states out of 2,753 complaints of rape charges between April 2013 and July 2014, 1,287 cases were genuine and rest 1,464 cases were deceptive. Further, the report revealed that the number of fake rape cases jumped from 680 to 1,559 from the year 2012-2013. Also, a newspaper (The Hindu) revealed that out of 460 rape cases only 12 cases had gone through full trial in Delhi District court and were stranger rape and more than half of the cases were consensual sex, that were criminalized by their parents and they have used these laws just to end their relationships.
On the other hand, with the rise of “#metoo” movement under the spotlight of amended criminal law which protect women from any sexual harassment such as voyeurism, stalking, etc., has transformed consensual sex to constructed allegations. Therefore, these laws are misused as tools of ruthless measures and has created a greater advantage to settle their score or for any other nefarious motives.
Normally, when a man is alleged to commit rape against a woman and complaint against him is being registered, then our society as well as our system cares less about the evidence that can acquit him and a lot about the evidence which mark him as a rapist. The Justice Verma Committee recommended that the crimes should be made Gender-Neutral in Criminal Law (Amendment) Ordinance. But unfortunately the Ordinance was reversed in year 2013 with Criminal Law (Amendment) Act.
Despite, the Government’s dedicated efforts to prevent any kind of violence towards women by:
Widening the definition of Rape
Introducing fast track courts
To serve the justice to the victimized women and to defeat the sexual violence after the famous 2012 Gang rape in Delhi (Nirbhaya Gang Rape).
2. Domestic Violence and Cruelty
Domestic violence means violence or other kind of abuse by one person to another in a household or a domestic setting, such as marriage or cohabitation. One out of every five women in India is reportedly a victim of one or the other form of domestic violence and it leads to the high rate of domestic violence in the country. In 2005, The Protection of Women from Domestic Violence Act was passed which protects women from violence of all forms which takes place within the family or The Matrimonial house or any other matter connected or incidental thereto. In India, this law has been emerged as a guard or ’shield’ for women who are victims of these violent relationships. But on the other hand, many a times women are themselves the cause and the bearer of such violence and they often play a crucial role in committing such acts of violence against other family members.
The act of violence within a relationship or marriage generally leaves the victim with much more damage and pain than what is visible as injuries and scars.
A report by Amit Gupta from Hridaya (a local Men’s rights organization), states that out of 90,000 to 1,00,000 cases investigated every year, nearly 10,000 complaints of dowry harassment turn out to be false. There is a big number of married men who commits suicide every year with a fair amount of them facing domestic problems. He also added a observation to his survey that accordingly tells that many girls suffers beatings from their own mothers which is nine times more than the violence from mothers-in-law, yet no one has came forward discussing this issue.
Importantly, there are major two fundamental problems with this legislature:
It only favours and protects women i.e., it is framed in an vigorously Gender-biased fashion.
It exhibits the great potential for the misuse of its provisions.
Even when it has been established that being in an intimate relationship, women are equally capable of inflicting violence and involved in abusive behaviour, the law still resists protection to male victims. This law also provides for various rights to women without making them accountable for their own actions.
To cure this, the legislature should make these laws gender neutral which includes both men and women as victims so that to offer both of them a uniform guard by ensuring that the law is not to be used as a dirty weapon. Additionally, there is a crucial need to incorporate provisions which provides for strict penalties for any misuse of law. This would in turn prevent the legislations from misusing for one’s own very purpose.
Section 498-A of IPC, 1860
Section 498-A of The Indian Penal Code,1860 was the only provision under the law to protect women from any kind of violence that they may suffer within their matrimonial houses by their husbands or other family members of the husband before the Enactment of Prevention of Women from Domestic Violence Act, 2005. This section protects women from any kind of cruelty which they may face at any time within their lifetime.
But in Sarita v Ramchandran [2002 (6) ALD 319,2002 (4) ALT 592, I (2003) DMC 37] this trend was observed and reversed by the Court, and consequently, The Law Commission and The Parliament was asked to consider this issue and to make this offence as bailable and non-cognizable. However several women’s rights groups and organization protests against this idea of development arguing that it may ultimately benefit the actual accused and might give them a chance to escape from being convicted.
But a more positive and practical approach should be given to interpret and perceive this development as to a way that give all the men a fair chance to defend themselves and to not to fall prey to the unfair complaints filed by the women. In true sense, the justice means to protect the weaker and to ensure that the person who is alleged is given a fair chance to protect and establish his/her innocence.
3. Sexual Harassment Law
The harassment Law in India i.e., Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 gives protection only to women by its virtue. Therefore, India still lacks a legal framework under which a woman can be held liable or tried or can be convicted on the ground of committing any sort of sexual abuse against the man.
Officially, India does not have any exact figure or statistics that show the number of men who face any sort of sexual harassment at workplace, and how many of them actually come ahead to report and complaint about such matters. It is of utmost importance to understand that the sexual harassment is not merely about the gender or the sex of the victim, but it is mainly about control, power and authority. And so therefore, in today’s era, when the number of women successfully reaching the powerful and higher positions at the workplace are no doubt increasing with an excellent rate, there is no rationalize reason as to the question that why a woman who has reached higher position and is in power and control cannot be as abusive as her fellow male counterparts. Therefore, it is significant to review and examine the issue of growing matters of harassment and assault against men in public forums.
Sexual harassment of males significantly needs more attention than any other crime or issue as the suicide done by males at the workplace are four times more common than the suicides committed by females at the workplace. In 75 countries around the world including United Kingdom, United Sates, Australia, Denmark, etc., gender-equal legislations has been accepted. But, the Parliament in India, has repeatedly denied to enact the laws that would consider the crime of harassment as gender-neutral. So it is necessary that Indian legislation should realize and consider the fact that men can also fall victims to sexual harassment.
Section 125 of The Criminal Procedure Code, 1973 as well as various personal laws in India provides for the provision of ‘Maintenance’. As per the Law, maintenance means the overall well-being and includes food, shelter and clothing. This concept is evolved from Article 15(3) and further reinforced by Article 39 of our Indian Constitution. Wife, children and parents are entitled to maintenance under section 125 of CrPC. This section provides for a moral and a natural duty of a man to provide maintenance for his family when they are incapable to do so by themselves. This section was enacted to prevent and check homelessness by ordering maintenance for those who are unable to maintain themselves. This right is available at the interim and as well as after the final stage of the proceedings to wife, children and parents.
Under the Personal laws in India, in extremely rare cases, the court has adopted a liberal view and has given the husband right to claim maintenance from his wife, only in the circumstances where he is unable to maintain himself due to incapacity by some accident or a disease or any disorder he has. But it is obligatory for a man to provide for maintenance to his wife, parents and children (whether legitimate or illegitimate) under section 125. This section also includes step mothers, when she is not having any children of her own and has also been divorced afterwards.
It is understood that section 125 is a gender-neutral provision when it comes to provide maintenance to the parents, but it becomes gender-biased when it comes to the maintenance of spouses itself. The impact of this gender-biases is significantly faced by those men who are insufficient themselves and are compelled to maintain their wives and therefore they suffer incautiously because of unjustified nature of law. These biases also effects when such laws are misused by persons entitled to maintenance, harassing the respondent over petty issues which in turn results in putting father/husband/son under serious financial burdens.
In case of maintenance of spouses, Section 125 discriminates amongst Gender explicitly. On the basis of gender in cases of ensuring maintenance to parents and children, it also discriminates implicitly as a man is presumed being able to earn money if he is mentally and physically healthy and well. While the similar presumption is not applicable or relevant on the women.
Article 14 of our Indian Constitution talks about ‘right to equality’ where everyone is treated equal and same, irrespective of their any inequalities. Therefore it is of very much importance to grant equal justice to everyone, be him a man or a woman or a transgender. But, unfortunately, India does not have any legal legislation to protect men from any sort of sexual harassment committed by a woman.
There should be necessary amendments in our criminal laws to include and prohibit any kind of violence against men. Domestic Violence should be framed as “Spousal violence” and should not be further differentiated on the basis of gender. There should be a law which identifies any false allegation of violence or dowry. Also, Men who face violence or harassment of any kind should report them and must not be discouraged by any means to do so.
It is of utmost importance to understand that sexual harassment is all about power that is being imposed on the other and has nothing to do with the gender of the victim. It is the need of the hour to protect the men from sexual harassment by inserting the provisions and sections in The Indian Penal Code which penalizes such harassment on them.
The Judiciary and Legislature must ensure that these sexual harassment laws are not misused due to which men are alleged falsely on the grounds of these violence.
It is of utmost importance that the legislature in India should make rape and sexual harassment laws gender-neutral crimes and it is necessary for our government to focus more on sexual harassment of men than any other crimes. So, any victim can assure equal access to justice irrespective of his/her gender.
It is of negligent importance to ask which gender should be given preference as to harassment, because these kind of crimes are against humanity and therefore whoever be the culprit must be punished.
The Government, Media and Society are very much interested and keen to hear about the sexual harassment of females and fails and care less about the sexual harassment faced by males. Therefore, it is important that our society should understand and also accept the fact that ‘man can also be raped’ as well as ‘woman can also rape’.
Further, the person (irrespective of gender) who falsely alleged a innocent person of rape, should be investigated properly and prosecuted for manipulating the evidence. Therefore, according to me, a separate body must be created to fight back the false testimony and to analyze the genuineness of the case before it undergoes further trial. Because by doing so, the Media and the Society can realize who actually is guilty.
1) Indian Penal Code of 1860
2) The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
3) Code of Criminal Procedure, 1973
4) The Constitution of India, 1950
5) The Transgender Persons Act, 2019
6) Protection of Women from Domestic Violence Act, 2005
7) POCSO Act 2012
[DISCLAIMER: This article is for general information only. We have tried to include as much information as possible but there are chances that some important information may have been missed .It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the this article shall not be liable for any act or omission based on this note].