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ARE GENDER SPECIFIC LAWS UNCONSTITUTIONAL?

Ali- ibn- Abi Talib, once said, “Be respectful to women for they are the mothers of mankind.” Ali, the great philosopher also said, “Woman is a delicate creature with strong emotions, who has been created by Almighty God to shoulder responsibility for educating society and moving toward perfection. God created women as a symbol of His own beauty and to give solace to her partner and her family.”

It is an absolute truth and there is no denying of the fact that throughout human history, irrespective of culture, race, religion and region, women have always been respected and venerated. The main criteria of woman’s dignity has remained her motherhood.

“And Adam called his wife’s name Eve, because she was the mother of all living.” – Bible, Genesis 3:20
The Vedas glorified the woman as, the mother, the creator, one who gives life to the human race and worshipped her as a ‘Devi’. Patanjali and Katyayana suggest that woman in ancient India enjoyed equal status with men in all aspects of life.

“We have enjoined man concerning his parents, his mother carries him in her womb while suffering weakness upon weakness and then weans him for two years. That’s why We commanded him; give thanks to Me and to your parents…” – Holy Quran
Chapter 31:14

However, apart from all the regards and due respect given to women, it was earlier believed that a patriarchal order was a natural phenomenon and the same has existed from time immemorial. The primary cause behind such a concept was the woman’s delicate and weaker physical structure. This thought process was not limited to Indian society but in so many other countries including Europe.

As such, women had a very limited role to play in life, such as giving birth to children, weaning and nurturing them, looking after household chores, and taking care of the members of extended family. Women were not supposed to receive education, engage in business or employment and in many societies they were denied the right to suffrage.

Over a period of time, there was a ‘paradigm shift’ in understanding the devastating impact of suppression of women’s rights and sexual violence. This led to many organizations and activists to come up. In 1869, John Stuart Mill in his essay, ‘The subjugation of women’s rights’ narrated the state of women in Britain. He had also advocated women’s suffrage in Britain.

United Nations passed resolutions for upholding the dignity of women and adopting measures for safety against sexual violence. In late 1960s, Women’s Liberation Movement (WLM) emerged, which aimed to bring out a political, social and intellectual renaissance for the women in Western world but its impact subsequently spread across the world. With this the tide started reversing.

However, the flip side of such movements is that the over-enthusiastic women activists and particularly Non-Government Organizations (NGOs) started mushrooming as pressure groups, compelling respective governments to make stringent laws after laws to suppress the suppression of women without striking a balance. In the result, the government in India under pressure of these pressure groups devised innumerable pro-women and anti-men laws which are now largely viewed as oppressive, discriminatory, arbitrary and unconstitutional, having the potential to devastating misuse by women at the behest of their activists. This critical situation has led to emerging contemporary men’s groups for their defence.

   Talking to Lawyers Update Ritwik Bisaria, Men’s Rights Activist and Vice President of Men’s Welfare Trust, said that “as of today when women are self-determinant and empowered legally, socially, sexually and economically at par with their male counterparts, then from the principle of reasonableness, there is no point of making sections such as 375, 376, 354 and 498-A of IPC, etc; gender-specific.”

Ritwik Bisaria further said, “Any gender-specific law, ever made will be in complete violation of Articles 13 of the Constitution of India, which imparts the fundamental rights to all citizen of India, against being discriminated based on gender. A gender-specific law, in all scenarios, discriminates against men as a victim. These laws have been designed as ‘Anti-Male’, for the appeasement of feminine organisations and they do not consider females as the perpetrators of these crimes. State in violation of Articles 13, 14, 15, 21, cannot deny any person “equality before the law”, “equal protection of the law, and “personal liberty”.

Whereas, there are almost 50 gender-based laws including IPC 375, 376, 354, 498A, 509, CrPC 125, Guardians & Wards Act, Domestic Violence Act, Triple Talaq law, etc., which clearly violate the constitutional rights of menfolk. These laws are destroying the life and liberty of imaginary accused guaranteed under Article 21.

Bisaria further said that the Criminal Amendment Act is one-sided, politically motivated and hastily drafted. It was a knee jerk reaction taken under feminist pressure, who with all might, pushed the system to a corner and gave a go-ahead on a draconian amendment to an already existing biased law. As a result, feminists got a new avatar to easily misuse laws with heaviest punishments on sexual assault complaints.

According to Bisaria, it is a myth that women cannot rape men. If this understanding was correct, why is POCSO a gender-neutral act? Moreso, due to her biological constraints, a woman cannot rape a man like a man, but her act of pressurising a man loved by her to do a sexual act with her by way of persuading or threatening him amounts to rape. The evidence in support of this statement is that in so many cases women after having enjoyed consensual sex with a man in a live-in relationship for years often prosecutes him for refusing to get married. In many more cases, newspapers are flooded with the news that women pressurised and at times killed the wives of their paramours to get married with them after clearing the way. Yet there are countless reported cases of adultery and in all the cases, husbands are the complainant. As such, the phenomenon of married women having extra-marital sex with another person of her choice by luring, attracting or threatening him is logically speaking a form of rape. As such, raping or perpetrating to effect/ get raped are the two sides of the same coin.

Bisaria pointed out, “Ministry of Women and Child Development, had published a report namely, “Study on Child Sexual Abuse: India 2007”. As per this report, of every 100 children sexually abused in India, 53 were boys and 47 were girls (age group less than 18 years). The report also touched upon a survey of young adults i.e. from 18-24 years of age. The data for this age group was of every 100 young adults sexually abused in India, 61 were boys and 39 were girls. This means that as the age increases, the rate of rape of males goes much higher than that of females. Despite such clear reports, the government never took up any serious study of the ground reality.

Reacting to the views of Men-activist, Ritwik Bisaria, noted Senior Advocate and President, Supreme Court Women Lawyers Bar Association, Mahalakshmi Pavani said,

”Provisions of the law such as Sections 375, 376, 354 and 498-A of IPC can be safely considered to fall within the ambit of social legislation which aims to maintain social harmony and social security. The ratio between the statistics of male to female offences and female to male offences is drastically low. Even today, a majority of the females of the nation have not been able to come at par with their male counterparts. Provisions such as  ‘outraging the modesty of a woman’ has been an absolute necessity to protect women from suppressive misogynistic men who think passing lewd remarks enhances their manliness.”
When asked whether the Criminal Amendment Act is one-sided ‘appeasement law’, Mahalakshmi Pavani said, “I believe that it was the need of the hour and it was done according to the situation of this country where no woman is safe. Over half of the women who have been violated in one way or the other state, the violator was someone they knew. At times their own father.

With such conditions prevalent in the country such an important amendment cannot be termed as an ‘appeasement law’. In fact, stringent laws tend to act as a deterrent and are crucial to bringing down the crime. Probably if the death sentences awarded to rapists in  Nirbhaya case are executed, the crime of rape and molestation will definitely see a decline.”

With regard to ‘startling spurt in false cases’, Mahalakshmi said, “Every provision that exists, people have a tendency to use/misuse it. If any false case has been proved in the court of law, the accused woman must be heavily fined and also imprisoned in serious offences. In default of payment of fine, attachment of her property can be done.”

Senior Advocate Mahalakshmi Pavani does not feel any difference between the nature of digital rape and the penetrative rape. She says,  “The simple logic behind treating digital rape and penetrative acts similar is that both these acts violate the rights of a woman. Whenever we talk about rape, consent is the keyword and if it is not present then the nature of intercourse is irrelevant. In 1995 SCC OnLine Del 279 Veer Bahadur Vs. State, it was held that actual penetration is not necessary. Injuries on the vagina of the victim proved by medical evidence paired with due corroboration by circumstantial evidence, the accused can be convicted. This is especially important keeping in mind all the horrendous offences that have been committed against minors in the recent past.”

When asked whether the provision of single testimony of the complainant is arbitrary, Mahalakshmi said, “The provision of a single testimony of complainant  does sound to be arbitrary in nature but we must understand that most of the cases have no witnesses and by the time the victim gathers  courage to speak up, the time frame for conducting the medical examination lapses. The law was brought into force with an opinion that no woman will stoop to a level so low that she will falsely accuse someone of such a heinous crime because an allegation of rape is equally detrimental to the image of a woman in the society. Sometimes the women are pressurized and blackmailed into turning hostile in their own cases.”

Leading Supreme Court Advocate K.C. Kaushik, disagreeing with the views of his own colleague, Mahalakshmi Pavani said, “By making gender biased-laws after laws, we have come on the wrong footing. You are extending too much prestige and liberty to one gender at the cost of the other gender. Unless you treat both the genders at par, you are violating the rights of the other gender.”

Kaushik disputes with the false assumption that a woman will never level false allegations against men and that it is the man who is always the perpetrator. “This theory is based on delusions and hallucinations. There have been a large number of allegations by women which were proved to be false during trial. What can be said about the common man when the highest constitutional authority was not spared from false allegations of sexual harassment. What is next in the store for men?”

Kaushik further pointed out, “The Hon’ble apex court has struck down section 497 of IPC, thereby killing the sanctity of the age-old pious institution of marriage. As of now, a married woman is fearless to indulge in extra-marital relationships of her choice. Adultery is a very serious matter, not only for Indian men but equally damaging for the psyche of a man living in a permissive society, where the norms, especially with regard to sexual freedom become increasingly liberal. Many a time, the detection of the wife’s sexual activity outside marriage resulted in the brutal murder of the wife. Newspapers are flooded with such dreaded news.”

Advocate Kaushik quoted one such fresh case reported in leading newspapers of September 23, 2019, wherein, a 33 year-old man Ashu suspecting his wife Seema of an extramarital affair, allegedly stabbed her to death and hacked her body into several pieces to dispose them of in a septic tank and a drain in Delhi’s Prem Nagar. One can imagine as to how this striking down of Section 497 of IPC will multiply the occurrence of such brutal murders.

Kaushik also questioned the dispute of paternity which involves inheritance issues too, in the result of extra-marital relations of a woman. The essence behind the monogamous institution of marriage had so far been the ‘certainty of paternity’ and ‘guarding of the nest.’

Giving their views on the subject matter, renowned Advocate Navin Jaggi and his associates Aashna Suri, Sayesha Suri, explaining in detail, the faults  of  Criminal Amendment Law, said, “We are of the view that the Criminal Amendment Act is one-sided ‘appeasement law’, which was used by the government to douse the fire, inflamed at Raisina Hills by an uncontrollable mass throng of protestors consequent to Delhi gang-rape case of December 2012.”

Advocate Navin Jaggi and team further said, “As a law reform exercise, the State adopted the methodology based on impulses rather than sound legal prepositions and deliberations. These all are emotional insertions. The overdrive shown by the government in rushing the Ordinance was also questioned by the Delhi High Court where it’s Acting Chief Justice Gita Mittal while issuing a notice to the Centre asked for relevant scientific assessment or the research considered by the government before promulgating the Ordinance. In the meanwhile, to fulfil the constitutional requirement, the Criminal Law (Amendment) Bill, 2018  was introduced in the Parliament to replace the Ordinance with an Act of Parliament. The Bill was passed by Lok Sabha on July 30, 2018, and Rajya Sabha on August 6, 2018. Thereafter it received the Presidential assent on August 11, 2018, and came into force as the Criminal Law (Amendment) Act,2018 (CLAA) from April 21, 2018. The CLAA, which replaced the Ordinance with a retrospective effect, amends four central legislations namely: The IPC, 1860; the Code of Criminal Procedure, 1973 (Cr.PC); the Indian Evidence Act, 1872 (IEA); the Protection of Children from Sexual Offences Act, 2012 (POCSO).

Appearing to be a knee jerk reaction to public protests, the present legislation suffers from several drafting ambiguities which have left ample scope for the exercise of judicial discretion while interpreting the law in future.”

Navin Jaggi and the team feel, “On  perusal of the Amendments, one can identify a classification of rape under Section 375 and 376 – rape simpliciter punishable under section 376 (1), IPC and aggravated forms of rape punishable under section 376 (2), IPC. On the face of it, the amendment appears to be a strong provision against rape. However, on a careful look, one can appreciate its real implications. The worrisome aspect of the new law is the fact that it obliterates the distinction between rape simpliciter and aggravated form of rape. Now logically speaking the presence of an aggravating factor, as enumerated in 376 (2) from clause (a) to (n), should have warranted a greater punishment. But, post-CLAA, both classes of rape will invite the same punishment. There appears to be no rational basis as to why rape simpliciter should have the same punishment as awarded in aggravated forms of rape. Moreover, when the scheme of IPC itself recognises the classification based on the aggravated nature of the offence, then punishment should also be in proportion to such classification.”

“The ambiguous phraseology used in criminal laws, reflect their want for precision. Apparent inconsistencies in criminal laws of India makes it difficult for ordinary citizens and even legal experts to understand the scope of a particular provision. The IPC and its recent anti-rape amendments continue to ail from ambiguities, inconsistencies, and legislative apathy towards its reformation. Hasty legislation, drafted with intent to calm down public impulse, may augur well for optics and political rhetoric. However, in the hindsight, it compromises the quality of law reforms, and clogs the judicial system with petitions praying for an authoritative declaration on the law.”

“The Parliament which could have brought necessary changes in the IPC  left untouched by the 2013 Amendment Act, has missed yet another opportunity. By bringing superficial reforms, the State appears to have washed its hands, from addressing the more pressing need for a comprehensive revision of the penal code. Moreover, the State narrative of deterrence is nothing but misguided institutional aggression, detached from ground realities.”

Navin Jaggi and his team strongly feel, “The cases like striking out adultery law under Section 497 of IPC; Sec 377; Triple Talak and removal of 15-year-old vehicles are based upon a fundamentally different premise. In the case of Triple Talaq, the law was amended by Parliament. The amendment of any Statute or Law is the sole prerogative of the legislature i.e. the Parliament. As this is done, the Supreme Court could not interfere. In the present case, unless the Parliament amends the law to include within its purview other genders and trans-gender, the Supreme Court cannot on its own, appropriate to it the jurisdiction of the legislature. Law needs to be balanced. The balance has been disturbed.

All sexual offences should be gender-neutral. Men, women, and other genders can be perpetrators and also victims of these offences. Men, women and others need to be protected alike. At the same time, it is clear that gender-based laws are like a double-edged sword. Sometimes, the conservatives wield it to preserve our culture, at other times, progressives take positive discrimination too far. Maybe it’s time to shelve the tool and remove from the law all privileges and disadvantages that are based on gender”, concluded, Advocate Navin Kumar Jaggi, Aashna Suri and Sayesha Suri.

The High Court of Delhi in August last dismissed a petition filed by social activist Madhu Purnima Kishwar, in which she had challenged the constitutional validity of the Criminal Law Amendment in 2013 and 2018. It contended that widening the definition of rape to include non-penetrative acts was irrational and unfair and grossly violative of the due process.” Due to the provision that the only testimony of a woman was sufficient for the conviction, the petition had claimed that there has been a ‘startling spurt in false cases’ filed by women with ulterior motives. Over 53% of the total cases registered in Delhi proved fraudulent. However, the Bench of Chief Justice D.N. Patel and Justice C. Hari Shankar dismissed Kishwar’s petition saying, “We see no reason to entertain the writ petition as we cannot pass an order which cannot be executed by this court.”

Advocate Sanjjiv Kkumar in October 2018, filed a petition in High Court of Delhi, which challenged the constitutional validity of Sections 375 and 376 of IPC, seeking to make these sections gender-neutral. The Ministry of Home Affairs filed the reply before the Bench of Chief Justice Rajendra Menon and Justice V. Kameswar Rao, that rape law cannot be made gender-neutral because of the perpetrators of the offence are men and that globally offences like sexual harassment are predominantly perpetrated by a man on woman.

The Centre said in its affidavit that, “Further, globally offences like sexual harassment along with other offences like voyeurism or stalking are predominantly perpetrated by a man on a woman. These sections have been enacted to protect and keep a check on the rising levels of sexual offences against women in India.”

The Supreme Court in November, 2018, refused to entertain a petition filed by NGO Criminal Justice Society of India,  challenging the constitutional validity of Section 375 of IPC, which deals with rape on the ground that the provision is not gender-neutral. A bench headed by Chief Justice Ranjan Gogoi and Justice S.K. Kaul said that the issue raised in the petition is a subject matter of legislature’s domain. “The issue falls in the realm of the Parliament. We don’t want to say anything on it right now.” The bench, however, granted liberty to the petitioners to make a representation to the legislature.

The petitioners pleaded that the section applies only to women as victims and men as perpetrators. It does not take into account non-consensual sexual assault inflicted on a woman by woman, on a man by another man, on a transgender by another transgender or man or woman, on a man by a woman.

Professor of Law, Dr Khan Noor Ephroz too feels, “The provisions of the Act are gender-biased, harsh, discriminatory and arbitrary. Living in a civilised society, we should behave fairly without any prejudice or bias against any person or group of persons. There should be the accountability of people in authority who make arbitrary laws.”

Professor Khan Noor Ephroz concluded that the real culprit behind the sex-related crimes is the newly arrived morbid culture of ‘online pornography’, which has literally converted society into a ‘Dystopia’ full of immoral and corrupt behaviour. The government and the courts are in no mood to ban and block online pornography, as it is ‘naked capitalism’. The government need to accept that the publication of pornography on the internet is now treated as a public place. According to experts, online pornography has a direct link with the rape, especially of children. There is evidence that many serial killers including the notorious American serial killer Ted Bundy had raped and killed more than 30 minor girls under the crystallizing effect of hardcore pornography. As such, if the government  ban and block online pornography, the crime against women and children will automatically come down.”

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