GENDER NEUTRALITY AND SHADES OF SPECIALITY

“If we try to get rid of one wave with another, we end up in an infinite sea.”

Introduction

Gender Neutrality: It means something neutral, which sees all genders alike, and most of our laws are gender-neutral. There are only a handful of our gender-specific laws.

Gender Neutrality is when we look at a crime or behaviour that is wrong, irrespective of who is committing that behaviour.

• In the POCSO Act, 2012, a child is defined as "any person below eighteen," regardless of gender. Using the word 'any' denotes equality for all genders.

• Gender Neutral means the view that policies, language, and other social institutions should avoid distinguishing roles according to people's sex or gender.

We live in a gendered world & absolute equality of gender equality of the genders irrespective of any considerations in a gendered world might be a shame or injustice. We cannot deny substantive equality; that is what our constitution declares that we are all equal.

A POSITIVE DISCRIMINATION

Marriage gives a license to kill neither to the husband nor to the wife, and marriage does not permit abuse of the other party. However, the institution of marriage has undergone significant changes in the last two decades as a traditional system. What happens in our society is that we always look for a person who is taller, more potent, elder, more educated, well settled, earns more, and has a good family background, and then what does society do? They send their daughter with him to his home with his family.

The differences are inevitable when two people stay together, but in this kind of tradition, it is the girl who finds herself in a vulnerable spot; whenever any abuse or violence takes place within a family, it is tough to prove all this in courts of law because that asks for pieces of evidence and witnesses. People do not testify against family members. Neighbours are reluctant to intervene in others' affairs, so what do we do?

We cannot deny that men are also subjected to physical, mental, financial, and emotional abuse. However, the numbers are significantly less than violence against women. Most women are suffering violence within their families, so how we protect our women should be the more significant concern. Our Constitution guarantees protection and equality, so what we did was we invoked Article 15(3) to enact a special law for them earlier. Also, we had laws to punish the offenders, but they offered no reliance to the victim; thankfully, in 2004, we got the DV act which is for the protection of women against domestic violence act which provides prompt relief to the victim. It is only to give relief to the women in the form of maintenance, restraining order, and custody of children; the objective of DV is to protect it, not to punish the men.

Gender-Specific Laws: A Real Necessity

So, when we say that this is a gender-specific law only for women, it is just doing something where the law was lacking because of this loose kind of institution that marriage has become in which women are mainly at the receiving end. However, when we talk about men being abused in this institution of knowledge, they already have gender-neutral laws. There is the law against criminal assault, and there is the law against any hurt or grievous hurt, and that does not say that if this wife has hit a man, we are not going to register in FIR; we already have laws. The gender-specific laws we are explicitly talking about have been made to protect women because, ideally, what would happen if a woman is always on the receiving end? It is challenging for her even to register an FIR.

Nevertheless, these are specific laws which are in addition to laws that we already had which provide easy and quick redress to a large number of victims of violence, and that is why women are in more significant numbers constitute the majority of victims and that is why we have got this DV Act. I agree that men need more protection, but for that, we should not be diluting the existing laws. We need to broaden our safety.

However, removing all laws seemingly protects women because there is no longer any reason to protect women. One cannot deny the enormous power imbalance, political power, economic power, social power, cultural prejudice, and traditional discrimination that is there. That is why we have these laws to make a difference in how we approach law.

If we look at under-reporting in all countries. However, the level of under-reporting here in India is enormous, not only for rape. It is all kinds of crimes, so comparing the way that crime statistics are collected in the UK and US is not worth it because our reporting of crime and data collection do not match those standards that we have to accept. In cases of false accusation, a man can file a case of false accusation, but it is complicated to do because everything in terms of accessing justice is difficult to do, and that is for both sides; that is why women do not file an FIR whatever is happening to them, and that is why we cannot have a flat playing field because a level playing field would be unjust.

However, the culture of our country also makes it a laughable issue for a man to go to a police station and say, "I have been raped."

GENDER BIASED LAWS

Maintenance under Section 125 of the Code of Criminal Procedure, 1973:

Section 125 of the Code of Criminal Procedure, 1973 discusses the concept of maintenance in India and the laws that extend the right to maintenance to the wife and her parents and children.

• Maintenance in itself is a part of social justice. A man's fundamental duty is to maintain his wife, children, and parents as long as they cannot maintain themselves.

• The maintenance law was exclusively made with an intent to radiate a significant duty on the male to maintain their dependents.

• Hindu Marriage and Adoption Act are also considered gender-biased and compel a duty upon only men to maintain their wife and children.

• It has been advocated that Section 125 CrPC be declared unconstitutional in violation of Article 14 because the burden of providing maintenance is only on men.

• Section 375 & 376 of IPC: The predominance of a man has been shown in many sexual crimes such as Rape, Stalking, Voyeurism, and Sexual harassment. The FIR (First Information Report) for these sections can be filed only by a woman.

• As per Section 375 of the IPC, there has to be a man to rape and should be a woman to get raped. The section does not recognize men as rape victims.

• Section 354 of IPC: deals with assault with intent to outrage the modesty of a woman; however, there is no such law to protect the modesty of a man.

• Section 498A of IPC states that a husband or any relative of a husband who commits an act of cruelty on a wife is subject to imprisonment up to a term of three years as well as a fine.

• Surprisingly, no law in India states any punishment if women commit an act of cruelty to men though such a situation does occur and is possible.

THE LEGAL CONTENTATIONS

In the case of Bodhisattwa v. Subhra Chakraborty and Narendra Kumar v. State (NCT of Delhi), The Supreme Court of India accepted the contention that rape violates the fundamental human rights enshrined in the Indian constitution, namely the right to life and personal liberty. However, Indian rape laws persist with the traditional notion of rape wherein only females can be a rape victim and henceforth violates the human rights of men.

Countries like the United States, England, etc., also have gender-neutral laws. Thus, it is only logical that India should have Gender Neutral Rape Laws as well.

In the case of Rajesh Sharma v. The State of Uttar Pradesh

It has been observed that most of these complaints are filed in the heat of the moment over trivial matters. Many of such complaints are not bona fide. When a complaint is filed, implications and consequences are not visualized. The complainant and the accused are sometimes harassed unnecessarily due to such complaints.

Sudesh Jhaku v KC Jhaku

The court was required to determine whether, before 2013 definition of rape could be interpreted to include non-penetrative sexual acts.

However, the court also went beyond its mandate to opine on the issue of gender neutrality. The judge noted that the offence of rape was the sole avenue under the Indian criminal law for dealing with heinous acts of sexual assault before quoting the following passage from California Law Review*

Men who are sexually assaulted should have the same protection as female victims. Women who sexually assault men or other women should be as liable for conviction as conventional rapists.

Considering rape as a sexual assault rather than a particular crime against women might do much to place rape law in a healthier perspective and reduce the fantastical elements that have tended to make rape laws a means of reinforcing the status of women as sexual possessions.

SOME OF THE RECENT CASES WHERE MEN BEING FALSELY FRAMED

Story of Vishnu Tiwari

This is a case of false rape in which Vishnu Tiwari has been in jail for 22 years. The woman died at 22 years due to some biological condition. The woman's husband and father-in-law trapped Vishnu Tiwari because they had some land dispute. Furthermore, the government had done nothing to trace the people who filed a case against him.

Rameshwar Tiwari, the 43-year-old's father, died in 2013, and Ram Shakhi, his mother, passed away within a year. He also lost two brothers to cardiac arrest during this time. He attended none of the funerals.

"Is there anything more painful for a son than not being able to see his dying parents' faces one last time?"

"Is there anything more unfortunate than being unable to perform or witness the last rites of a family member?"

He is illiterate. In the days after his parents died, he could not even make a phone call home when he needed it most, as he remained in contact with his family through letters whenever someone read or wrote one for him.

Story of Zomato Food Delivery Guy

Last year, an Instagram influencer named Hitesha posted a video on the internet in which she was crying and showing her bleeding nose in a selfie video and accusing a Zomato delivery man named Kamaraj of assaulting her after an argument over a late delivery. She then rode a sympathy wave which allegedly gave her 10k extra followers. However, within a couple of days, Kamaraj refuted her claim, saying it was Hitesha who had abused and hit him. FIR against both has been registered. As the news came up, it was amusing to see how easily people made up their minds and quickly changed them.

However, as Kamaral's version came out, the wave swung towards him, quickly morphing into the class debate- middle-class versus working class.

After the investigation, the story came out that Hitesha had hit him with slippers, accused him of defaming her, and hurled abuses at him. Meanwhile, Hitesha deleted her viral video based on which Kamaraj was arrested by the police and fired by Zomato.

In this incident, an innocent man is falsely framed, and social media trials have been done due to which the person lost his job, reputation, and mental trauma. Moreover, no act was further taken against the woman after filing FIR.

Story of a Minor Student

Last year, a teacher in Punjab's Jalandhar fooled the parents of a 13 year old, saying she would teach him everything.

She had 'Manglik dosha' in her Kundli (birth-chart) to avoid that omen and thought that this was 'Manglik dosha' coming in the way of getting married. She kept the boy for six days in her house and performed marriage with him and rituals, including Haldi-mehndi ceremony, and then had the first night and declared a widow by breaking her bangles. She had done all this just to get done with one marriage so she could get married again. He was a 13-year-old boy, and the police did not register an FIR. If a man had done this to a 13-year-old girl, imagine how much seriousness there would be towards an incident like that, how much discussion there would be to an incident like that. Here no action had been taken, and they were being threatened and told to strike a compromise with this woman.

Gurugram woman filed 7 rape cases against 7 men

A 20-year-old student filed seven rape cases against seven men at seven police stations in Gurugram. She filed seven complaints over 14 months, beginning September 2020. The allegations surrounding the woman came to light in October. After activist-filmmaker Deepika Narayan Bhardwaj alleged the cases were fake in a complaint to the Haryana State Commission for Women, the panel, on 26 October, wrote to the state Director General of Police (DGP), P.K. Agarwal, and demanded a special investigation team probe into the matter. This investigation remains underway.

The man's family was threatened — give money or get married. The investigation discovered that the woman had asked for money and filed a rape complaint if it was not given.

The woman, an English Honours student at Delhi University, later on, was charged with extortion, insulting a woman's modesty, criminal intimidation, and criminal conspiracy. Later she was arrested. On 24 October 2021, the victim's mother filed an FIR accusing him of rape against him. Even when she had 2 cases of Sec 182, she had not been put behind bars even for a single day. This girl dared to go and tell the judge that if the court granted bail to this person, she would go to complain against him in the high court. Police officers were afraid to take the right step, but then the mother of the victim who was falsely framed came and filed a complaint against the woman. So this is how people are being disadvantaged; people are being penalized just because they have been given the power, which is very wrong.

CONCLUSION

These are absolutely bizarre, but the problem is that the instances of wrongs that happen with women come in large newspaper headlines. In contrast, the things I have pointed out are shelved into the corner, and when a minister like a former member of Rajya Sabha Renuka Chaudhary laughs and says it is the time for men to be harassed. In contrast, the minister of women and child development was in the interview with Karan Thapar and said that if the domestic violence act is biased then probably it is time for men to suffer.

When we see a case where a woman is making allegations against a man, we immediately declare the person guilty without even listening to the other side of the story. This is the consequence because so many crimes are happening against women, but on the other hand, it is unfair not to give another person a chance to present their side of the story. So, the onus is on society to look for both sides of the story before declaring someone guilty. The reparations are severe; people lose their jobs, social status, reputations, and terrible consequences. Hence, society needs to be conscious and wait until the whole truth is in front of us. The verdict passed before declaring someone guilty because this is not just a fad for social media; this is about the lives of people.

It is a slow process, but changes do not happen overnight; there is much more awareness, conversations, and discussions on these issues than ever before. Thanks to social media, people also put out their sides of the story, dig into the case, look into the cases in the courts, and talk about it. Moreover, a case like Zomato opens the eyes of people that believe one side of the story is dangerous, and there is more activism now. Kapil Misra, a minister of BJP, has gone to the Supreme Court asking for compensation for Vishnu Tiwari. In another case, in Mumbai high court again, a man who spent seven years in jail on a false rape charge is claiming compensation. I feel disputes happen in every society, people falsely accuse, but the onus lies more on the police and the courts. They are there to find the truth and give justice to the people, while they are horrendous and wrong for filing false cases. There is more responsibility on the police and the courts, and even if they do what happened with Vishnu Tiwari, they hold themselves accountable for destroying life. Why are people filing so many false cases? Why are women misusing laws because they know they can get away with it, and as long as the system allows people to do something like this, they will obviously misuse it?

I think more and more people should go to the court and ask for justice, and there will be some change, but as of now, the system is not in place to actually compensate people like Vishnu Tiwari. Women had to fight for a very long time to get their rights, so, as a flip, it will take some time to be recognized and corrected, and it is a wait.

This article is written by Ayush Sharma of Vivekananda Institute of Professional Studies.