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CRITICAL ANALYSIS ON GENDER INEQUALITY IN THE CRIMINAL JUSTICE SYSTEM IN INDIA



INTRODUCTION:


A nation's laws can be divided broadly into two categories: private law and public law. Public law is concerned with the enforcement of the rights and duties of the State towards the citizens as well as the rights and duties of individuals against the State, whereas private law is enforced by civil jurisdictional courts and deals with the rights and duties of individuals towards each other. The principles of common law, civil law, socialist law, and law based on religion are all present in both private and public law.


So, based on gender, the laws of both private and public law established various restrictions for men and women. Therefore, discrimination that led to gender disparity was a direct effect of the laws that originated in customary laws or laws found in early legal sources. However, circumstances changed, and the gender inequality brought on these old rules was despised. This caused the concept of gender justice to emerge on the societal scene.


The legitimacy of gender inequality has been called into question, and gender justice has been favoured by contemporary jurisprudence. The Human Rights Law is the most important component of contemporary jurisprudence that supports the concept of gender justice. This particular area of law views both men and women as having the right to fair and equal treatment as human beings. Its goal is to protect the notion of human dignity. It disregards factors like gender, place of birth, descent, or age and calls on states to treat both men and women as "human beings" in all situations, whether they are civil or criminal.


No judicial system in the world can claim to give women total justice. Even the early English laws had a number of problems. Under that legal framework, women were not only denied the right to vote, but also the right to contract with others and the right to bring a lawsuit against someone who had wronged them. But over time, things changed in a way that gave women certain protections. Similar to this, India's judicial system has the quality of ensuring women receive appropriate justice, despite the fact that it does not provide them with full justice.


If we examine each subject's legal provisions one at a time, we will discover that while the legal system undoubtedly made an effort to provide women with justice, the solutions chosen to address diverse issues fall short of being effective. For instance, there are distinct educational institutions (schools, colleges, and universities), and seats are reserved for women. The legal provisions apply to employment as well. There is a 33 percent reservation for women, the principle of equal compensation for equal effort, and no benefit of the service is withdrawn from women solely due to their marital status, childbirth, or motherhood.


In a number of ways, they are equal to males. When the Constitution is amended to reserve seats for women in the Union Legislature and the State Legislatures, political progress will be made in this area. The Department of Women's Welfare, the Women's Protection Cell, women's police stations, etc. are examples of administrative mechanisms to address women's issues. Despite this, there are still many issues where the State must act to promote equality and eliminate gender-based difference because it is antithetical to the idea of the rule of law and the administration of equal justice. But the truth remains that in a society where men predominate, women cannot demand greater justice than what such a society can provide for them.[1]


HISTORICAL BACKGROUND RELATED TO GENDER INEQUALITY:


The disparities based on gender have a long history of their own. Whether it was the ancient history of the Westerns or the ancient history of the people of the East, one could notice disparities in legal system in regard to rights of the women. These disparities have affected the status of women in more than one matter. The rights of women in social, economic, political and cultural matters would show how women suffered in their rights. Owing to the belief of the people that rights and duties arise from customary practices and these practices have a legitimate role to play in improving the status of persons and strengthening the bonds of civilization, the discriminatory practices have continued up till know.


Gender-based discrimination has a lengthy history on its own. There were differences in the legal systems regarding the rights of women whether it was the ancient history of the Westerners or the ancient history of the people of the East. The position of women has been impacted by these discrepancies in a number of ways. Women's rights in social, economic, political, and cultural contexts would demonstrate how they were violated. The discriminatory practises have persisted to this day because the populace believes that customary practises are the source of rights and obligations and that these practises have a legitimate place in elevating human status and fortifying the links that bind civilisation. However, on the advice of the reformers, modern legislative bodies rejected those practises, usages, and customs that directly conflicted with the new principles of progressive societies. Thus, the changes made to the old law that affected the ascent of women by the new law-making bodies might be understood as a reaction to the old ideals. This chapter explores the history of human civilization with a focus on how gender-based injustices caused women to lose their civil rights.[2]


GENDER INEQUALITY UNDER PENAL LAWS:

The Indian Penal Code contains a number of sections that are Gender Discriminatory. According to the penal rules, a man or a male cannot ever be sexually assaulted, harassed, or treated cruelly. It promotes the idea that male criminals are born, whereas female victims are born.


The Indian Penal Code of 1860 is a general framework of Indian criminal law that regulates all illegal activity in India. Every person shall be subject to penalty under this Code and not under any other law for every act or omission that is contrary to its provisions and that he shall commit within India, according to S.2[3] of the I.P.C. On the other hand, we are all familiar with the myth that only men commit crimes. This justification not only promotes gender inequality but also covers the crimes that women plan and commit. Men and women commit crimes for the same reasons, according to research. Both the criminal mind and our laws should not discriminate based on gender. The Indian Penal Code contains a number of rules that are not just pro-women but also totally against men. There are several statutes that can be cited as being in opposition to one another, including Sections 498A[4], 376[5], 509[6], etc.


Maintaining the premise of the Indian Penal Code and evaluating from the perspective of the domestic front, the story of violence and harassment for the majority of males starts at home when they fall victim to their spouse's selfishness. Two measures, Section 498A IPC and the Protection of Women Against Domestic Violence Act, are available for the benefit and protection of women, but sadly, they are frequently misapplied. According to Section 498A of the IPC, if a married woman is the victim of cruelty or harassment committed by her husband or a family of her husband, the husband or those relatives will be penalised with up to three years of imprisonment & shall be liable to fine.


This section was included after a significant number of married women died as a result of dowry demands or acts of violence. This once-pro-women rule is now used to physically and economically harm men while upending the foundation of the family. Today, when a marriage fails, the husband and his family are usually accused of immediately demanding money without considering the real causes. False complaints against men have rapidly increased as a result of the abuse of the pro-women movement. Shiv Narayan Dhingra, a former judge of the Delhi High Court, acknowledged that "women are abusing this provision to annoy their spouses and in-laws. Misuse of these laws is what he refers to as "legal terrorism." Women make up about a quarter of those detained for violating Section 498A, primarily the mothers and sisters of the accused spouse.


In a report published in 2012 by the National Crime Record Bureau, it was noted that over 2,000 000 persons are detained under this clause, but only 15% are found guilty in court, with the remaining claims being false. Men's mortality rates have increased as a result of this. Ironically, if a woman commits suicide, her husband is promptly arrested and sent in jail, but if a male takes his own life, his wife is never questioned.


Men's suffering is not just confined to their homes; because of his vulnerability, they are often subjected to abuse at work. The Indian Penal Code's Section 354[7] clearly defines sexual harassment, assault with the aim to undress, voyeurism, stalking, etc. The section addresses sexual harassment and how it is dealt with. The study of this section leads to the conclusion that only men are capable of sexually harassing women, therefore only men can be held accountable under this section, as stated in the section's opening phrase, "A man committing any of the following acts." Additionally, Section 354B[8] specifies assault with the aim to disrobe, Section 354C[9] discusses voyeurism, and once more, the only requirement to be considered an offender for this crime is that you must be a man. The problem is that only men can be accused of committing this crime under section 354D[10] of the I.P.C., despite the fact that stalking is definitely a criminal under that provision.


Applying the Golden Rule of Interpretation, it can be concluded that a woman is always the victim and that a male can be held accountable for these offences. In Indian society, men are viewed as the most physically and psychologically capable people; no one ever feels the need to notice the tears streaming down their faces, acknowledge the emotional agony they experience, or frequently even listen to their complaints. This puts us in a position where it is crucial to comprehend the genuine meaning of gender discrimination.


A man is said to have committed "rape" if he, according to section 375[11] of the IPC, which is definitely not gender neutral and clearly specifies in its first sentence. There is no part in Indian penal law where a man can report for sexual abuse, and he cannot even submit a case for sexual harassment, according to this section of the country's penal code. The word "rape" was changed to "sexual assault" in an attempt to make the law gender-neutral after this issue was brought up earlier. However, free citizens objected to this amendment, and as a result, the act ended up being gender-specific, with men always acting wrongly and women being helpless victims.[12]


GENDER INEQUALITY UNDER POSH ACT:


Prevention of Sexual Harassment Act, 2013 has been enacted by the Indian Parliament after Vishaka Guidelines provided by the Supreme Court. The main objective is to safeguard Indian women who were subject to sexual harassment and unfair treatment at workplace. It is very much true that women face harassment for very long time and their protection is reasonable as many women were able to seek justice who are aggrieved by sexual harassment at workplace. However, the said protection is not available to men which creates a gender inequality in this aspect. Men can also be subjected to harassment by women for which there is no system for addressing sexual harassment allegation alleged by men. As there is no provision under POSH Act for protection of men, it has left men with no remedy and thus a clear violation of gender equality principle can be inferred from this. Moreover, this has become a tool for some women by misusing the provisions to extort money from innocent men by filing fake cases. In our society it has been a presumption that “A woman can never lie regarding allegations of sexual harassment and if she has said then men who has been alleged to have committed the harassment must have done it”. These anti-men biasness presumption has resulted into shaming of men and making them fall into the trap of malicious compliant. The POSH Act should be amended to establish redressal forum for men as well so that the said inequality could be removed.[13]


LAWS RELATED TO MAINTENANCE CAUSING GENDER INEQUALITY:


Under Indian legal system, majority of the legislations related to maintenance has been provided for wife which is to be paid by husband. The duty has been casted specifically upon “husband” to take care of the basic needs of their wife, parents and children. Under Hindu Personal laws, the enactment like “the Maintenance Act”, only husband can be made liable for paying maintenance and wife is exempted from such duty. Only under Hindu Marriage Act, both husband and wife are responsible to maintain and then also courts have emphasized upon the duty of husband to maintain their wife. Further, Under Muslim personal law, wife is entitled to claim Dower (Mahr) and maintenance from husband at the time of talaq under “Muslim Women (Protection of rights on Divorce) Act. She can even claim maintenance till the expiry of iddat period or beyond that under Shariat Act. There is no mentioning about the duty of wife to maintain her husband and children.


The Courts have supported notion that husband or father is the person who has duty to maintain his wife even if he has lack of resources. In the “Sunil v. Nimnish[14]”, it was held by the Court that father being unemployed or having very less earning cannot be raised as an excuse for not maintaining his child or wife. Although Courts have tried to take equitable ground for grant of maintenance to the partners. While claiming maintenance by husband or wife under the Hindu Marriage Act it is easy, on the other hand the provisions contained in other laws are available for wife only and it is difficult for court to apply a gender-neutral stance as provisions itself particularly mention the phrase “maintenance to the wives/women”. This was re-affirmed by the Court in the Firdos Mohd. Shoeb Khan case[15]. From this it is evident that husband are the ones who are more responsible for maintenance. As we know that the modern society encourages both men and women to work and has kept both at equal footing. So, when it comes to maintaining the family, the burden should be taken by both the spouses. There can be situation that husband is unable to earn and wife is earning well. Then applying the present law, it would be unfair for men that they are only made liable to maintain even after having no resources. Making laws for maintenance on the basis of gender in present society is clear violation of equality under Article 14. These laws are creating discrimination against men and it is suggested that the laws should be amended as per the needs of the society. [16]


GENDER INEQUALITY UNDER DOMESTIC VIOLENCE LAWS:


Domestic violence is considered to be a kind of violence which has mental, social, physical and psychological impact on the life of a person against whom such violence has been done. Laws in India has recognized domestic violence as serious issue which has provided remedies to women only. In the year 1983, the act of “domestic violence” was designated as an offence chargeable under Sec. 498A of Indian Penal Code. Even under domestic Violence Act 2005, only women are entitled to claim relief for domestic violence against them. Thus, only women are treated as victims of domestic violence under these legislations which again creates a gender inequality as men are never treated as victim despite the fact that domestic violence can be committed against them also. In Indian Society, men are always treated as “perpetrators of domestic violence”. This notion has resulted into making of gender biased laws wherein men are not provided remedy for violence against them.

As the conditions in society are changing, the domestic violence is no longer been limited to women. Now, men are also becoming prey to domestic violence. As per a statistical data, it has been revealed that out of 100 cases of domestic violence, 40 cases are being registered against men. The reason for non-reporting of these cases is lack of legal remedy and our societal system which attaches the belief that only women can be victim of domestic violence and men are mostly involved in using force against women. The said presumption is not correct and has led to the gender inequality in society which is adopted by the laws as well. Further, in 2007, a survey of 1,650 married men was conducted by “Save the family foundation” wherein it was found that domestic violence against men is prevalent and most common form of violence against them was economical violence which was about 32.8%, followed by emotional violence, physical violence and sexual violence. This survey clearly depicts that men too are vulnerable to the domestic violence. There have been several cases where husband or men shared their feelings as to how their wives commit domestic violence. Ground reality is that men are subjected to physical violence by wife, parents or relatives; emotional violence like wife intimidating husband by putting force emotionally, sexual abuse and so on. Having said that in the present scenario, men and women both are considered equal and any kind of laws discriminating them based on gender has led to situation where gender inequality is prevalent.


Since these domestic laws are favouring women, so the scope for its misuse by women against men also increases. In Vishnu Tiwari v. State of UP[17], the man who was accused spent 20 years in prison for a false rape charge. This case depict how domestic law can be misused by women and there is no remedy for men. It is need of the hour that a domestic law safeguarding right of men should be enacted which will empower them as well and eliminate the gender inequality under Indian law.[18]


NEED FOR GENDER EQUALITY:


Men are thought to be supreme in India due to the decades-long patriarchal rule, and they are expected to exhibit masculine traits. Indian males who have experienced sexual abuse are compelled to remain silent out of fear of being teased, laughed, and insulted by their coworkers, protecting their pride and status as men. The sad reality is that "it can" happen to a man in India, notwithstanding the doubts of many. The Indian population views sexual crimes against men as a myth and says it is extremely improbable that a guy will be sexually harassed by a woman there. Only a few instances of sexual harassment against men have been documented in India. People are now stepping outside of their comfort zones and beginning to believe that talking about their experiences will not only reveal the tragedy but also set them free physically, emotionally, and mentally. This perception has been influenced by the growing education system, the growing technology, and the increased accessibility to information globally. Typically, victims of sexual assault and harassment don't come forward or file complaints because they are afraid of the stigma that can develop in the community.


In a recent study, it was discovered that 16.1% of the 222 Indian men polled had been forced into having sex. Men being raped and the prevalence of men rape is higher than is popularly believed, despite the fact that male rape has not been the subject of as much research as female rape. Adv. Rishi Malhotra's argument about the PIL that was submitted to the honourable Supreme Court. The bench, which was led by Chief Justice of India (CJI) Dipak Misra and also included Justices A. M. Khanwilkar and D. Y. Chandrachud, responded to this claim by saying, "It is up to the Parliament. They must act immediately if they believe that this problem demands it. We are unable to order the Parliament to compile information on these offences and change the IPC. The bench declared, "We cannot modify the IPC. Judge D.Y. Chandrachud added, "Perhaps the legislature will now realise the need to make the rape statute gender-neutral and may perhaps then decide as per the urgent requirement."


A 2010 Economic Times-Synovate survey indicated that 19% of the 527 males polled in six major cities across the nation said they had experienced sexual harassment. The study found that 51% of the 527 males who participated in it in numerous major cities across the nation said they had experienced sexual harassment at work. A similar poll was carried out by a business called Viacom 18 in 2013, and it revealed that over 43% of male corporate employees have experienced sexual harassment at the hands of their peers. Under the auspices of the home ministry, the National Crime Record Bureau (NCRB) compiles statistics on crime against men under several categories of kidnapping and abduction for a range of reasons, such as illicit sexual activity, prostitution, and marriage. Since 2009, 175 males have been kidnapped or abducted for unlawful sexual activity, according to NCRB 2012 data. Another unsettling figure shows that men are also susceptible. 115 men were kidnapped for prostitution, according to NCRB data, while 995 men have been either kidnapped or abducted since 2009 in order to force them into marriages. The age groups of 18 to 30 and 30 to 50 have seen the majority of recorded kidnappings and abductions of men for sexual favours.[19]


POSSIBLE REMEDIES RELATED TO GENDER- NEUTRAL LAWS:

  • Changes in Framing the Laws

A change in the way laws are written is one of the first steps that must be taken to acknowledge the reality of male sexual victimisation. Not only for the Indian Penal Code, 1860, but also for other laws including those pertaining to domestic abuse and family laws, this needs to be secured.

  • Gender Sensitization Training for the whole Legal Machinery

Along with changing the concept of rape law, we also aim to make the entire legal system more capable of coping with the ungendered society of the twenty-first century. This may be necessary so that victims will not be reluctant to report violations to the police.[20]


SUGGESTIONS:


The current Scenario and study of various laws indicate that owing to societal growth, it is necessary to create legislation that should be gender-neutral. Because it is primarily about dominance and power, sexual abuse is a crime that can affect anyone.


The government made an effort to maintain the constitutional framework while also amending the statute to make it gender-neutral. India is currently not at a stage of development where laws can be made that are gender-neutral. The government makes a cautious but steady effort, to pass legislation that are gender-neutral. The government should make an effort to safeguard all societal identities—men, women, and transgender communities while bearing in mind the predicament of society's most vulnerable groups, namely women.


CONCLUSION:


The Indian Constitution ensures everyone's right to personal freedom and life as well as equal protection under the law. It also outlaws sex-based discrimination. Laws are intended to safeguard citizens while also ensuring their rights. Making a regulation that is gender-specific, however, goes against the notion of equality and equal protection under the law.


In India, gender identification has always been a big concern in terms of how society functions and how the laws are written. Legislation is required to change laws that discriminate against women. Indian society has made significant advancements in the 21st century. Gender must not be assigned to either victims or offenders. It not only acknowledged the existence of the third gender but also examined it as a component of society.


The Indian Justice System is in charge of defending the rights of the male or transgender people. Only gender-neutral laws will encourage more victims to seek assistance and redress, and they cannot in any way compromise the experiences of one gender.


REFERENCES:

[1] Dr.Nagaraju Kilari, “GENDER INEQUALITY IN INDIA”, RESEARCHGATE (Dec. 09,2020), https://www.researchgate.net/publication/348326280_GENDER_INEQUALITY_IN_INDIA (last visited Dec. 01,2022) [2] Selin Dilli, Introducing the Historical Gender Equality, Taylor & Francis Online (Apr. 18,2018) https://www.tandfonline.com/doi/full/10.1080/13545701.2018.1442582 (last visited Dec. 01,2022) [3] Sec. 2 of IPC- Punishment of offences committed within India [4] Sec. 498A of IPC- Husband or relative of husband of a woman subjecting her to cruelty [5] Sec. 376 of IPC- Punishment for rape [6] Sec. 509 of IPC- Word, gesture or act intended to insult the modesty of a woman [7] Sec. 354 of IPC- Assault or criminal force to woman with intent to outrage her modesty [8] Sec. 354B of IPC- Assault or use of criminal force to woman with intent to disrobe [9] Sec. 354C of IPC- Voyeurism [10] Sec. 354D of IPC- Stalking [11] Section 375 of IPC- Rape [12] Ishita Pandey, HE OR SHE: GENDER DISCRIMINATION IN PENAL LAWS, https://ijlpp.com/he-or-she-gender-discrimination-in-penal-laws/#:~:text=There%20are%20several%20sections%20in%20Indian%20Penal%20Law,are%20born%20criminals%20and%20women%20are%20born%20victims(last visited Dec. 03,2022) [13]How to draft a Gender-neutral PoSH Policy?, UNGENDER (Jul. 14,2022) https://www.ungender.in/how-to-draft-gender-neutral-posh-policy/#:~:text=A%20PoSH%20policy%20of%20an,2013%20and%20its%20accompanying%20Rules(last visited Dec. 04,2022) [14] R.P.F.C. NO. 197 OF 2014 [15] CRIMINAL APPEAL No. - 397 of 2020 [16] Jus Corpus, Gender Neutrality of Maintenance Laws, JUS CORPUS LAW JOURNAL (June 25,2022) https://www.juscorpus.com/gender-neutrality-of-maintenance-laws/(last visited Dec. 04,2022) [17] CRIMINAL APPEAL NO. 1015 OF 2019 [18] Snigdha Shresth, GENDER-NEUTRAL LAWS FOR DOMESTIC VIOLENCE : NEED OF THE HOUR, NJLRII (Mar. 10,2022) https://www.njlrii.com/2022/03/gender-neutral-laws-for-domestic.html(last visited Dec. 07,2022) [19] Adeeb Kafeel M, SECTION 375 OF IPC: A GENDER BIASED LAW, BRAINBOOSTER, (Dec. 24,2020) https://www.brainboosterarticles.com/post/section-375-of-ipc-a-gender-biased-law (last visited on Dec.07,2022) [20] Shruti Gupta, A Critical Analysis on Gender biased rape laws in India, ILSIJLM (Oct.17,2020)https://ilsijlm.indianlegalsolution.com/a-critical-analysis-on-gender-biased-rape-laws-in-india/#_ftn8(last visited Dec. 08,2022)


AUTHOR ~ SAUMYA SHARMA

LLM Student (CLCJ),

JAGRAN LAKECITY UNIVERSITY BHOPAL

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