GENDER EQUALITY IN THE INDIAN PENAL CODE, 1860 – Content
Before getting into the core of the topic, one has to understand the meaning, concept and crux of the word Gender Equality. It primarily means to circumvent distinguishing roles according to people’s sex or gender to avoid discrimination.
It emphasizes on equal treatment of men and women socially, economically and legally without room for any sort of discrimination.
The Indian Penal Code (hereinafter referred as IPC) was drafted in 1860 on the recommendations of first law commission of India that was established in 1834 under the Charter Act of 1833.
It is the criminal code of India that prescribes punishments for various crimes. In my view, various sections of the IPC are female sensitive and this definitely leads to gender inequality.
CONSTITUTIONAL PROVISIONS FOR GENDER EQUALITY
Article 14 of the Constitution of India (hereinafter referred as the Constitution) provides equality before law and equal protection of the laws. Article 15 of the Constitution provides discrimination on grounds of religion, race, caste, sex, or place of birth.
These two provisions come under fundamental rights of people which are not absolute and subjected to reasonable restrictions. There are lot more provisions in the constitution to promote equality between men and women but I consider these two provisions because the topic we are discussing is directly related to these.
NEED FOR GENDER EQUALITY IN IPC
Section 8 of the IPC defines the word ‘gender’ as “the pronoun ‘he’ and its derivatives are used of any person, whether male or female.” Section 10 of the IPC defines the words ‘man’ and ‘woman’ as “a male and female human being of any age respectively.”
As per Section 2 of the IPC, the law does not distinguish between criminals, and every person who has committed an offence is liable to punishment under the code.
But people are generally of the mindset that violence is generally male generated and women are always the victim, but it can and is also vice versa.
This does not just create a gender divide in the society, but also creates a shield to the crimes committed by women. When crimes are not gender sensitive, laws should also not be sensitive to a gender.
Gender equality is to be brought in to entire IPC. But I majorly concentrate in Section 304B that deals with dowry death, Section 354 that deals with assault or criminal force to woman with intent to outrage her modesty, Section 354A that deals with sexual harassment, Section 354B that deals with assault or use of criminal force to woman with intent to disrobe, Section 354C that deals with Voyeurism, Section 354D that deals with Stalking.
Section 375 and 376 that deals with Rape and punishment for rape, Section 497 that deals with Adultery, section 498A that deals with husband or relative of husband of a woman subjecting her to cruelty, Section 509 that deals with word, gesture or act intended to insult the modesty of a woman, because these are the sections under which majorly men are punished and women are under a shield of protection.
With due respect to all the women, we should come out of the view that victims are always women.
Section 304B that deals with dowry death gives us the assumption that a woman was harassed by her husband and in laws for money and finally she has committed suicide or died in abnormal circumstances within seven years of marriage.
Section 498A further extends shield to women which makes cruelty by husband and in laws is punishable.
This has become a weapon to the family of the victim that there are instances where they started using the death of victim or cruelty forced on her against the accused and his family to pull out monetary benefits.
Bad investigation by the police in these cases is being another immense concern.
There are no such provisions to investigate and punish, if a man has died within seven years of marriage in abnormal circumstances or is subjected to physical cruelty or mental harassment by his wife or his in laws.
Moreover, these two sections are non-bailable, non-compoundable and cognizable offences in India.
Section 354 of the IPC is enacted with a view to protect women from an indecent assault as well as to save the public morality and decent behaviour.
Now let us think of these questions in another way,
- what if a woman forces another woman to be naked ?
- What if a woman stalks another woman ?
- What if a woman gains pleasure from watching another woman naked ?
- What if an assault was committed by a woman on another woman ?
And the in the same way a man can commit all these crimes against another man.
Both man and woman can commit these crimes on the LGBTQA+ community and they may also commit these crimes on men and women.
May be these questions seemed irrelevant in the times when the code was enacted, but we are in 21st century where criminals are well in advance and new age crimes are escalating.
Rape has shaped to be the most heinous crime that malefices another person’s privacy and can even cause death at times.
According to Section 375 of the IPC, you have to be a man to officially rape and a woman to officially get raped which in itself do not recognise that men can also be victims to rape.
Only resort for male victims was through Section 377 which also does not differentiate between consensual and non-consensual sex, it was also decriminalised.
The moment you type the word ‘rape’ in Google, a helpline link from National Commission for Women pops up whereas no such concern is ever given to a male rape victim.
Imagine a man in India making it all the way to police station and complaining that a woman has raped him, it would become a sensation and a funny thing to joke on.
Generally, a man has to be aroused to be able to have sex, and people are of the conception that it cannot happen if he is forced or tortured to have sex, but scientific evidences prove that a man can be aroused by touching at sensitive nerve ending areas though he is not willing to have sex.
Besides female on male rape, a female on female rape can also be committed, which is also not addressed in the IPC thinking it is impossible. Under Section 376(2)(g) a woman may be charged for gang rape in India.
Sexual harassment is dealt under Section 509 of the IPC which is enacted to secure modesty of women. No such provision is enacted to secure the modesty of men, it is even more questionable when a man harasses a man or a woman harasses another woman sexually.
Adultery under Section 497 of the IPC has been recently decriminalised in India with a view that it gives husband more power over his wife’s choices, it still remains as a ground for divorce.
The section says that adultery can be committed only by a man, if a man has sexual intercourse with a married woman without consent of her husband, the husband can prosecute the man, and the man only, this has become a shield for the woman who is involving in adultery.
Moreover, the wife of the man who has committed adultery has no voice to rise a complaint against the woman who was indulged in adultery with her husband.
Talking about Gender equality is not anti-feminism, many of the laws we have discussed above are used as weapons against men.
They are used to take revenge and gain monetary benefits. The basic genesis of feminism is equality and it can be achieved only with gender neutral laws.
It is true that women are most vulnerable to crimes, but we have to accept the fact that crimes can be committed against men and LGBTQA+, they also suffer, and women can also be perpetrators for crime against women.
The process of socialisation in India is sexist that we do not identify that men can also be violated. We need to ensure that amendments are made to the IPC and gender-neutral language is used, all the genders are to be equally protected.
Gender equality is the only solution to prevail our justice system, bring faith in our laws, for humanity to supersede and to rise above our shallow prejudices.
We need to realise that crime has no gender, everyone should be deterred from committing it. A crime inflicts countless griefs on the victim and they definitely deserve justice. A person should be punished for their crimes regardless of their gender.
YOU MAY ALSO LIKE TO READ
- An article named Gender-neutral Indian Penal Code by Avrati Srivastava published by Legal services India.
- An article named Is India Ready for Gender equality by Megha Ahuja published by Legal services India.
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