Author: Umang Kapoor
Advocate, Delhi High Court
The present essay titled as “The Gender Bias in Gender-specific laws of India '' is aimed at discussing and critically analysing the Gender-Bias laws existing in India and their benefits and scope of their improvement. It begins from the very basic need and source of Gender-Bias laws in a society and then proceeds to discuss various different gender-bias laws already existing in India. The essay also tries to analyse the biases in the laws and their positive or negative impacts or usages in society. It tries to check or evaluate the laws based on the contemporary social structure of India and suggests the improvements which can be made to the existing laws.
Gender inequality has been a worldwide issue for ages. The history is filled with movements led in different parts of the world against gender discrimination. India is no different, gender discrimination has been in our society for generations for various reasons.
Gender discrimination is suppression and denial of any equal rights and opportunity based on gender. Since Independence Indian governments have made various gender-bias laws to curb gender discrimination in society.
The funny thing about the scenario of these gender bias-laws is that their existence itself measures how much the society naturally accepts and protects the rights of a certain gender, but sadly they are inversely proportional i.e. the more the laws, the lesser the natural acceptance and protection. The present Essay will overview various such Gender Bias laws existing in India and will critically analyse such laws, their benefits and impacts in society and finally, the requisite changes for improvement. This write-up will surely raise questions about whether the current scenario in India of Gender Bias laws is going in the right direction or does it need any major changes?
WHY GENDER-BIAS LAWS?
One may ask what creates a need for gender bias laws in a society, the answer is simple; the structure of society itself! In India, long-existing Indian cultures, practices, patriarchal systems, taboos and lack of social acceptances created that need.
Every gender should be treated equally in society. But it does not happen so. The very basis of gender-neutral rights in a country evolves from the concept of the government structure existing in that Country. Since India is a democratic country, its Constitution provides that every person of the country is entitled to equal rights. However, on the ground reality, it may sound cliché but for a country where female Goddesses are worshipped, neither the culture nor the Constitution has proven to be sufficient enough to entitle women of equal rights. Thenceforth, the State has tried to achieve it by legislating such gender-bias laws for the protection, empowerment of girls or women and the basic right to life and liberty to every woman of the country.
SOURCE OF GENDER-BIAS LAWS IN INDIA
We all know that in India many Gender Bias laws are in existence today. But the thing to be pondered on is what is the source of such laws? What empowers the legislatures to enact such laws? The answer is quite simple i.e. The Constitution of India, 1950. The Constitution empowers the State to enact such beneficial legislation for the protection, upliftment and empowerment of the woman in the society.
Article 14 of the Constitution ensures equality for every person, irrespective of gender, within the territory of India.
Article 15 prohibits discrimination against the citizen based on religion, race, caste, sex, place of birth, etc. Interestingly, Article 15(3) provides special power to the State for making any special provision for a woman and children. Therefore, the inclusion of such a clause gives the special power to the state to make all Gender Biased Laws for the empowerment and protection of women in society.
Article 16 relates to the equality of opportunity rights concerning public employment. It ensures that no citizen shall be discriminated based on caste, religion, descent, place of birth, sex or any of them for public employment. Therefore, such an article ensures that no woman is discriminated against and should be considered on an equal pedestal for public employment. The importance of this provision can be looked into the case of Muthamma v. Union of India , where the Apex Court struck down the discriminatory law by declaring that it was not mandatory for woman officers in IFS to seek government permission to get married.
The Constitution also provides various directive principles provided under Part IV of the Constitution like Article 38, 39 and 42 which require that the state should try to achieve real equality in society, equal pay for equal work to all workers and securing just and humane conditions for maternity relief.
Article 51-A under Part IV A of the Constitution also attempts to ensure a better and protective environment for the woman by introducing a fundamental duty on every citizen of a natural obligation to renounce practices derogatory to the dignity of the women.
DISCUSSION ON VARIOUS GENDER-BIAS LAWS
Over time many special laws have been enacted in India with the sole beneficial objectives for the targeted female gender. Some of the major laws have been dealt hereunder:
● The Protection of Women from Domestic Violence Act, 2005
In 2005, the Act came as a blessing for the women suffering in violent or abusive domestic relationships. Its sole objective is the protection of women and children from any kind violence occurring in domestic relationships, including matters within the family and for matters connected therewith or incidental thereto. The gender biasness of the Act is reflected in the title itself. Moreover, section 2 (a) of the Act only considers women as the “aggrieved person” for the provisions of the act. The law surely has helped and improved many lives in society but, there are also such disturbing instances where women have used the act as means to wreak petty revenge.
● Laws on Rape and Sexual Offences
The offences related to rape and sexual offences exist in the Indian Penal Code, 1860 since its inception. Though with time many amendments have been made to them to strengthen their effect and execution. The horrendous judgement of the Apex court in the Mathura custodial rape casegave rise to the Criminal Law (Second Amendment) Act of 1983 where under Section 114A in the Indian Evidence Act of 1872 and Section 228A were added. Similarly, after the Nirbhaya case in Delhi, Parliament passed the Criminal Law (Amendment) Act of 2013 thereby providing offences related to acid attack, aggravated forms of sexual harassment under section 354A- 354D. It also increased jail terms in most sexual assault cases and also provided for the death penalty in rape cases that cause the death of the victim or leaves her in a vegetative state. The latest Criminal Law (Amendment) Act, 2018 tackles the issue of rape of minor girls in a stricter sense.
The pertinent thing to note in all provisions dealing with such offences of rape and sexual offences is that they are based on the premise of biasness in favour of the woman. They only protect the woman as the victim or aggrieved person of such offences and consider only the man as the perpetrators of such offences.
On critical analysis of these laws, although they have been made with the beneficial objective, they give an unfair prejudice and gender-biases against men in India and stereotypes the women as "innocent gullible victims" in all scenarios, which is not correct.
Such a female-biased definition of offences conveniently ignores the potential victims of three different scenarios; first, where a woman rapes or sexually assaults a woman; second, where a man rapes or sexually assaults a man; and third, where woman rapes or sexually assaults a man. But if we compare the premise of these definitions with the landmark judgement of the Apex Court in Navtej Singh Johar & Ors. v. Union of India, which declared all forms of consensual sex between competent adults to be legal. Then, today gay or lesbian sex is legal in the eyes of law and its consequential interpretation is that the law accepts the fact that woman can be sexually attracted to woman and man can be sexually attracted to a man. This gives rise to a paradoxical situation.
Some provisions of these offences are also confusing and grossly misused. As even when a girl in the intermediate age of 16-18 gives consent, but the provisions consider it as a rape on the part of man and incriminates the consensual relationships. Recently, in a case before the Madras High Court (HC), a boy accused of aggravated penetrative assault was acquitted. The court considered it a case of mutual consent and teenage attraction and observed that it was not an uncommon occurrence at such an age, and, further the court made suggestion towards the reduction of age of consent from 18 years to 16 so that the boys are not accused of the unnecessary crime and does not have to undergo a whole trial. According to data of the National Crime Records Bureau half of the POCSO Act cases fall in the category of 16-18 years’ age group. Therefore, removing such cases of consensual sex under this category can help us get a better picture of actual sexual assault cases.
● Section 498A of IPC
The particular amendment of introducing Section 498-A into IPC was to provide a special safeguard and protection to the woman from torture or cruelty by her husband or his relatives and to prevent dowry harassment. Wazir Chand’s case was the first-ever case, where under the woman’s husband and his father were convicted under Sec 498A of IPC and sentenced to one year of rigorous imprisonment and a fine of Rs.100/-.
But today, the present shield is being used as a sword, women are misusing it to harass their husbands and in-laws. Women use it to threaten their husbands if they fail to carry out the wishes or demands of them.
The Apex Court also in Arnesh Kumar case observed that such misuse of this law subjects the innocent husband and his relatives to immediate arrest and bail is also denied to them since the offence is non-bailable and cognizable. This is a clear case of violation of human rights.
To improve, an amendment should be made focusing on making this offence as compoundable and bailable, therefore, allowing parties to enter into an understanding and to withdraw such cases.
● Equal Remuneration Act, 1976.
Equal Remuneration Act, 1976 ensures that there is no discrimination on the ground of sex and for matters connected therewith or incidental thereto, against a woman concerning payment for work at employment. It ensures equal pay for equal work to both men and women workers.
● Maternity Benefit Act, 1961
The legislation aims to regulate the employment of women in certain establishments for a certain period before and after the child-birth and provide them maternity and other benefits.
The Maternity Benefit (Amendment) Act of 2017 is a great step towards bringing women in the workforce closer to workplace equality. The Act extends the paid maternity leave available to female workers from 12 weeks to 26 weeks, as well as makes it mandatory for every establishment with at least 50 employees to provide a crèche facility for working mothers among its employees.
But this seemingly progressive and rational Act in practice is also quite harmful to the prospects of female workers. As by putting the burden of providing benefits solely on the employer, this policy would also demotivate employers from hiring women, consequential to the lower graph of female participation.
● Maintenance laws
Maintenance laws for all religions are absolutely gender biased in nature, as they entitle only wives to claim maintenance from their husband but give no right to husbands. Hindu Adoptions and Maintenance Act, 1956, The Indian Divorce Act, 1869 for Christians, the Parsi Marriage and Divorce Act, 1936 and the Muslim Women (Protection of Rights on Divorce) Act, 1986, only give an absolute right to a wife to claim maintenance from her husband. Only the Hindu Marriage Act, 1955 is a gender-neutral law which gives both Hindu male and females the right to claim maintenance from their spouse. Even the law under Section 125 of Criminal Procedure Code, 1973 avoids husbands and only entitles the wives, children, and parents with the right to maintenance.
MAJOR CRITICAL ANALYSIS - WHAT ABOUT OTHERS?
The funny and thought-provoking thing is that as soon as the subject of gender rights and gender bias laws surfaced the very convenient presumption goes towards the rights and empowerment of women. And surely the same thing would have happened to you all the readers of this essay. And this in itself raises doubt about the whole gender bias laws setup running in our country.
As per 2011 census, in India transgender population is around 4.88 Lakh and surprisingly, no recognition to a single one. Even this primary data of Transgender has been clubbed inside "Males".
In 2012, after 65 years of independence, the Apex Court in a landmark decision held that transgender people should be considered as the “third gender” and affirmed that they are entitled to the fundamental rights guaranteed under the Constitution of India. The Court observed that the transgender community comprises of Hijaras, enunch, Kothis, Aravanis, Jogappas, Shiv- Shakthis etc.
But the ignorance of the Indian laws and The Constitution towards the third gender or transgender is disgraceful and shocking. Even till date, there is no mention of the third gender or transgender anywhere in existing laws in India nor there is any special law enacted for the empowerment of the community.
According to the study of NHRC, transgenders lack education facilities, unemployment, medical facilities and grave social discrimination; about 92 percent of the transgenders are deprived of the right to participate in any form of economic activity in the country; about 99 percent suffer social rejection and discrimination; 18 percent face physical abuse and 62 percent face verbal abuse even in schools.
Therefore, the concept of gender bias laws needs to be channelled in India. The purview and ambit of such laws need to be amended to ensure equal opportunity, social acceptance and respect to the persons belonging to the third gender.
NEED FOR CHANGES
● Measures to improve recognition of the “third gender” in society and laws
This one is the foremost advancement needed in Gender-Bias Laws in India. The State should take action towards making a constitutional amendment to give place to the “third gender” in Article 15(3), Article 16 and Articles related to Part IV- Directive Principles of State Policy. This will allow the State to make special legislation for the empowerment and protection of the Fundamental Rights of the “third gender” and will allow and promote legislation targeted towards creating equal job opportunities and equal social rights for them.
● Reconsideration of sexual offences definition
The amendments should be made in the definition of sexual offences to make them more gender-neutral, which ensure the protection of all genders and not only of women, from any of such criminal offences.
● Better and expedite implementation and check mechanism
It should be inculcated in laws to ensure proper adherence to laws specially enacted to promote the representation of gender in public employment and to laws related to maternity benefits or equal remuneration.
● Representation in Legislatures
The improvement of such Gender-Bias Laws is achievable if their legislation includes insights from that particular gender people. Therefore, laws should be enacted to promote the representation of the women and “third gender” in each level of legislative assemblies i.e. Local Panchayats and Parishads, State Government and Central Government, so that they can be a part of law-making.
The Democracy of a nation is imperfect without the representation of people from all genders. Surely, on one hand, the contemporary Gender-Bias laws in India are progressive and attributed towards a better future for women but, on the other hand, the ignorance towards “third gender” is disheartening and the same needs a significant focus. The laws should be amended or legislated with contemporary approach, to eradicate the root problem associated with gender discrimination as every person is important for building a nation.
 (1979) 4 SCC 260.  Tuka Ram and Anr vs State of Maharashtra, 1979 AIR 185, 1979 SCR (1) 810  Writ Petition (Criminal) No. 76 Of 2016  Sabari @ Sabarinathan v. The Inspector of Police, Belukurichi Police Station, Namakkal District & Ors, Criminal Appeal No.490 of 2018
https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/Chapter%206-15.11.16_2015.pdf  Wazir Chand Vs. State of Haryana, AIR 1989 SC P.378  Shoba Rani Vs. Madhukar Reddy, AIR 1988 SC P.121  Special Leave Petition (Crl) No. 9127 of 2013  https://www.census2011.co.in/transgender.php  National Legal Services Authority v. Union of India, WP (Civil) No 400 of 2012  https://nhrc.nic.in/sites/default/files/Study_HR_transgender_03082018.pdf