Rape is the fourth most common crime against women in India. India lodged
average 86 rapes daily, 49 offences against women per hour in 2021 according to
NCRB data.  There have been many rape cases widely covered by the media that
would give anyone chills.
The Nirbhaya case, 2019 Hyderabad Rape Case, Unnao Rape Case, Hathras Gang Rape
Case, Shakti Mills Rape Case
, are some of the many cases that have shaken
our country over the years. According to the 2018 National Family Health Survey
by the Union Health Ministry, 27 per cent of surveyed women, i.e., about every
fourth woman, faced domestic violence since the age of 15 years. The case of NRI
Mandeep Kaur would frighten any human to their bones.
With the concept of patriarchy firmly in place in India, women are at a
disadvantage. Socially, mentally, physically, women have been subjected to
multiple crimes, and this flows into the modern society as well with women being
forced into submission in every facet of their lives. The career trajectory,
educational opportunities, social freedom and healthcare of a woman varies
greatly from her male counterpart.
A large part of the life of a woman is determined by "log kya kahenge
What the society thinks of her modesty, her life, has a significant effect on
what she is allowed to do and how she is allowed to live.
Where does gender neutrality of laws fit into this dynamic? Even though it is
true that women have faced, and keep facing, many atrocities over the years,
it's also true that we can't assume the one size fits all approach. There have
been multiple cases of false accusations, and misuse of the law, by women.
Also, the fact that a man can also be subject to domestic crime should not be
ignored. We cannot blindly assign women the role of the victims and men the role
of the perpetrators. The law, as envisaged by the founding fathers, needs to be
impartial even in light of patriarchy to keep up with the rapidly changing
mindsets of the people.
Why Do The Laws Tilt In Favour Of Women?
The laws, as they are right now, are tilted in the favour of women. And there is
a reason for that, or there was, at some point in time. Most of the reasons are
largely based on conceptions of men that have evolved over time but the laws
have remained unchanged.
The primary reason is patriarchy. It believes that men are inherently more
mentally resilient and stronger than women. That contains an assumption that
they can't be forced to engage in sexual activity, be mentally abused, or be
subject to any other kind of violence by their partners, or any other person in
Although it might be true for a large part of the population (thus giving rise
to the notion in the first place), it's imperative to remember that not all
humans can be measured by the same scale. Forcing the male population to live up
to the image created for them makes it even harder for them to speak against the
abuse. In domestic violence cases, men may be too afraid to speak out for fear
of being shamed.
In rape laws in particular, since the act of sexual intercourse is one of penile
penetration in the vagina, it was assumed that the force can be only on the side
of the man, rather than from the woman as well. The semantics of sexual
intercourse between a male and female give the idea that the female cannot abuse
the male into having sexual intercourse with her.
Another presumption while making rape laws was that males inherently crave for
physical intimacy while females might not always reciprocate the desire. In
rape cases, it is very difficult for the men to speak up for fear of being
emasculated or lose their self-worth. Both these presumptions have lost their
validity over time.
However, Indian law is still reluctant to change its position, because as recent
as June 2022, legal experts still believe that the offender needs to be in a
position of "strength" and the victim should be "weak". The distinction between
mental and physical strength has not been made clear, even today.
Which Laws Tilt In Favour Of Women?
The official website of National Commission for Women lists numerous
legislations that are women-specific. They include:
- The Immoral Traffic (Prevention) Act, 1956
- The Dowry Prohibition Act, 1961 (Amended in 1986)
- The Commission of Sati (Prevention) Act, 1987
- Protection of Women from Domestic Violence Act, 2005
- The Sexual Harassment of Women at Workplace (Prevention, Prohibition And
Redressal) Act, 2013
- The Criminal Law (Amendment) Act, 2013
- The Indecent Representation of Women (Prohibition) Act, 1986
Clearly, Acts as recent as 2013 have been women specific. What is the rationale
behind criminalising several offences against women, like stalking and
non-penile penetration, but leaving other genders out of the scope of the 2013
amendment to criminal laws? The clear bias towards women in cases of dowry,
domestic violence, sexual harassment in workplaces, stalking, among others is
There is a separate section listed as "Women-related legislation" on the NCW
website and lists the following:
- Indian Penal Code, 1860
- Indian Evidence Act, 1872
It is concerning to see that laws as wide as the IPC and Evidence laws are
considered to be women related. The legislations that are supposed to be gender
neutral and mention "any person" in maximum sections are now increasingly
becoming diluted by the need to protect women specifically.
A major portion of the IPC pertaining to crimes against women, refer only to
males as criminals. The lacunae left by not including all genders, both as
victims and as perpetrators, in such laws is a matter of utmost concern. Article
15(3) of the Indian Constitution allows for the state to make special provisions
for women and children, making all the women-specific legislations and
provisions legal. However, that cannot allow the government to blatantly ignore
the holes in our laws, becoming increasingly fathomless with the change in
Real Life Examples Of The Scales Tipping To The Other Side
Multiple examples have cropped up over the years where males have been subject
to crime, or a false accusation of committing a crime against a woman.
The Karan Oberoi 'rape
' case is a famous example of a woman staging an
assault on herself and blaming a man for it. Oberoi subsequently became the face
for the "#mentoo" movement, which started in October 2018.
It should be understood that it's not only females that have to be the aggressor
for a male to be abused. Numerous cases have been noted, both national and
international, where the perpetrator was a male and the victim was also a male.
The most chilling of them all (and even the most recent) is the case of Reynhard
Sinaga, who raped dozens of men in Manchester. He was convicted of 159 offences
and was alleged to have targeted almost 200 men.
Sinaga had been sentenced to a minimum of 40 years in jail. However, the case
would've been wildly different, were it to take place in India. The public
statement of one of his victims, Daniel, is proof of just how difficult it is
for men to speak up against crimes like rape.
In the Vijay Nair case
, the founder of OML, Nair was continually stalked
and harassed online. The ultimate charge on the perpetrator could not be under
section 354D of the IPC – as it only applies if the victim is a woman.
Although he got recourse, it was not for stalking, rather for identity theft,
cheating, and criminal intimidation. This method of remedy leaves quite a lot of
things to be desired.
These examples do not cover the even wider scope of transgender crimes, where
the perpetrator can be of any gender. The scope of the perpetrator has been
widened in several women-related legislations, but the victim is still one: the
Numerous PILs have been rejected by the High Courts and the Supreme Court to
make rape laws gender neutral and include men and other genders in its ambit.
Although there have been many recommendations relating to gender neutrality of
laws, the most significant of them is the Justice J.S. Verma Committee. It was
constituted following the horrific Nirbhaya rape case
, but the
suggestions of the committee were not entirely women specific. The Verma
Committee focused on making laws gender neutral in a way that had never been
Not only did it recommend considering men as a victim, it also took the LGBTQIA+
community into account. The recommendations of the committee were, and still
are, considered to be revolutionary and quite necessary with the way the law
stands as of now.
The key recommendation of the committee relating to gender neutrality was to
expand the scope of criminal law to include men and transgenders by replacing
the words "man" and "woman" to "any person". The suggestion was dismissed due to
concerns that it would lead to an influx of cases that the courts would not be
able to handle. Female rights groups also raised concerns that this could be
used as a tool against women and could be used to suppress and threaten them
further by threat of a false criminal case against them.
India has been making significant progress in terms of recognizing and providing
legal rights to the third gender. In 2014, in a landmark judgement by the
Supreme Court of India of National Legal Services Authority v. Union of India
transgenders and all other genders (other than male and female) were legally
recognized and it was acknowledged that they have all the fundamental rights as
does any other citizen of India. The judgement consequently gave rise to the
Transgender Persons (Protection of Rights) Bill, 2016, in the Lok Sabha.
Navtej Singh Johar & Ors v. Union of India
, 2018 is another critical
judgement which decriminalized all consensual intercourse between adults, which
means that homosexual sex is no longer a criminal act.
It is significant to note that the Centre has not been forthcoming with
suggestions to the benefit of the third gender. The two milestones in legal
remedies to transgenders have been by the court, rather than by the government.
The judgements have been fundamental in determining the legal identity of the
third genders but they have not even grazed their right to seek redress in light
of criminal wrong.
The Constitution of India enshrined equality and fair treatment to all citizens
of India regardless of gender, caste, religion, race, or place of birth.
Although it is legal to make specific laws for women and children, laws as broad
as rape, stalking, and domestic violence cannot be justified to be singularly
female-focused. These are some crimes that can happen against any person
regardless of gender and they must be treated as such.
All the arguments that stand against making laws gender neutral can be used from
the other end as well. Refraining from expanding the extent of the definition of
a "victim" in certain laws is not preventing cruelty on women. It is not
protecting them from the atrocities of the society. It gives them recourse, but
such recourse should be available to the citizens of our country, irrespective
Our law considers any accused innocent until proven guilty. That is because the
courts do not wish to put even one innocent man behind bars. The suffering of
one innocent is greater than the freedom of several guilty minds. Why does the
same not apply to cases in which the innocent is subject to crime? How would
such an innocent find justice when the law does not provide direct relief?
The reasons that stood to make the laws women-specific are no longer pressing
issues now. The legal documents of our country exist to provide justice and
recourse when there is a breach of the human balance. Articles 14 and 21 of our
Constitution are embodiments of natural justice.
Criminal arbitrary action needs
to be punished irrespective of gender. The law needs to evolve with the changing
times and identities of the people. Laws all around the globe are accommodating
people of all genders. It is time that India matches the expectations of its
people, constitution, and the world.
- Chapter 5: Crime against women, Crime in India 2012 Statistics,
- The Hindu, August 31, 2022
- Owen Jones, Male rape survivors suffer in silence. We need to help them
- Reynhard Sinaga: victim of UK's most prolific rapist speaks out,
- How a Mumbai entrepreneur unmasked his vicious cyberstalker and lived to
tell the tale, https://www.huffpost.com/archive/in/entry/when-vijay-nair-unmasked-his-vicious-cyberstalker-the-story-tur_in_5c11f327e4b0295df1fa44e6
- J.S. Verma Committee Report, https://spuwac.in/pdf/jsvermacommittereport.pdf
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