This article has been written by Srishti Singh, a 1st year BA LLB student from the Army Institute of Law, Mohali.
Introduction
The Indian Penal Code, 1860 (IPC) was written and enacted by the British government while India was still a British colony. The IPC has 23 chapters and 511 sections. Over the years, it has been amended more than 75 times to alter the state of punishments and to make it more relevant to the modern times.
However, the Code does not seem to have lost its sense of gender bias even after several attempts at and amendments. There appears to be a gender gap in the provisions laid out in the Code wherein women and other genders are not seen or recognized as offenders in crimes committed against men and other genders.
This article seeks to highlight these disparities which are further enhanced by certain provisions laid out in IPC.
Equality
Equality can be defined as the state of being equal, especially in terms of status, rights or opportunities. It is a situation where all men and women, people from different races, religions, ethnicities, castes etc. are all treated equally.
India having ratified the UN Charter in 1945 has the moral duty to ensure equality amongst all individuals without distinguishing among them on the basis of race, sex, language, religion etc. as outlined in Article 1 of the same. Therefore, under international law, India is obligated to ensure that all the citizens and subjects living within its territory are given equal rights and opportunities.
In light of the same, Article 14 of the Indian Constitution guarantees to all Indian citizens the right to equality before law and equal protection by law. Equality is a concept that has also been highlighted in the Preamble. Therefore, it’s an ideal which the State seeks to achieve. Moreover, discrimination by the State on the basis of religion, race, caste, sex or place of birth is also prohibited by the Constitution.
In Shayara Bano v. Union of India [WP (C) 118/2016], the five-judge bench of the Supreme Court gave its decision on the Triple Talaq case and declared the practice of triple talaq unconstitutional. It observed that gender equality, gender equity, and gender justice were values inherent and guaranteed by Article 14 of the Indian Constitution. Therefore, the ideal of granting social status as per patriarchal norms and ideas were absolutely unjust and against the spirit of equality.
Understanding the concept of equality is important for realizing how gender bias in our legislations impact the criminal justice system of our country. It is a universally accepted fact that law needs to be dynamic, i.e., it needs to change with the times. The cultural context of when IPC was drafted was vastly different from that of the current times. Therefore, there arises a need for addressing these changes and amending or bringing in new legislations to cater to the needs of the modern society.
Gender Bias in the IPC
Gender bias is behaviour that shows favoritism towards one gender over another. Most often, gender bias involves the act of favoring men over women. However, in the IPC, we see a different pattern.
In IPC, women are provided with more protection for crimes committed against them as compared to men. Moreover, the provisions in the Code limit the scope of their punishment to men, and so, if any crimes are committed by women against men, or by any other gender, on any other gender, there are no provisions for providing adequate protection to the victims who are not women.
Analysis of Related Provisions
Section 304B – Dowry death
This section states that if a death of a woman is caused by any burns or bodily injury or otherwise than under normal circumstances within 7 years of her marriage and it is seen that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be deemed ‘dowry death’ and such husband or relative would be deemed to have caused her death.
In addition to this, we must also pay attention to Section 113B of the Indian Evidence Act, 1872 which provides for the presumption that the accused has caused death of the woman if it is evident soon before her death, she had been a victim of cruelty or harassment.
In these situations, the husband and his relatives are automatically assumed to be the guilty parties even when they may have not committed such crimes against her. Therefore, women clearly have advantages in such scenarios. Although, dowry deaths are prevalent and are a crime against society, credibility of the charges made must be established before convicting anyone of the said crime. Moreover, there have been situations where this legislation has been misused.
Section 354 – Assault or criminal force to woman with intent to outrage her modesty
This section states that whoever assaults or uses criminal force on any woman with the intent to outrage or with the knowledge that he will likely be outraging her modesty, shall be punished imprisonment, fine or both. Section 354 of the Code illustrates how outraging a woman’s modesty is a matter of grave concern in our society, but when it comes to outraging the modesty of a man, the society turns a blind eye.
Moreover, the association of the word, ‘modesty’ which often denotes sexual virtue, with just women is problematic as well. It indicates that in our society men may be bullied or harassed, but these offenses shall attract no liability, and so, they do not amount to crimes.
This further glorifies the societal norms where women are viewed as invaluable vessels of chastity to be preserved and protected, while for men it propagates the idea that they can and must endure anything, even if it violates their bodily autonomy. It’s this ideal which normalizes the commission of grave sexual crimes against men and only recognizes women as victims.
Recently, in State of Maharashtra v. Rovena @ Aadnya Amit Bhosle [7000138/PW/2021], the Metropolitan Magistrates Court in Mumbai held that women too can be punished under this section, as the offender can be from any gender and the punishment for such an offence does not see gender.
Section 354B/C/D – Assault or use of criminal force to woman with intent to disrobe, voyeurism and stalking
These sections of the IPC have been worded such that they presume the acts of assault or use of criminal force to woman with intent to disrobe, voyeurism and stalking are offences which can only be committed by men. As a result, there are no provisions in the Code which extend their protection towards males and other genders in cases of assault or use of force with the intent to disrobe, voyeurism and stalking.
This presumption proves to be extremely detrimental to the society as it normalizes the idea that women and men have different experiences and therefore, must be treated differently. This stems from the norm that men can and must be able to endure any kind of violations and further, reinforces the patriarchal mindset of individuals in our society.
Section 375 – Rape
This section of the IPC outlines the various situations which if found to occur, constitute the commission of rape which can only be committed by men only on women. It also lists seven circumstances which may constitute rape and certain exceptions such as marital rape.
A general reading of the section indicates who is to be viewed as a victim and who is to be viewed as the perpetrator. Only a ‘man’ commits rape against a ‘woman,’ and there can be no variations in the same. Therefore, women cannot be the perpetrator of this crime. The section also excludes the transgender community from its purview and so, its protection can only be availed by the women in our country.
The section also brings to light the need for consent and will for sexual intercourse, but only in the case of women. The Code, here, mimics the attitude of our society where a man’s consent and will for sexual intercourse are not considered as important as a woman’s.
Section 114A of the Indian Evidence Act, 1872 following the Doctrine of Reverse Burden, often accompanies Section 375 of the IPC for determining if the victim had consented to the act by the accused. The use of the word ‘woman’ in the Section only recognizes women as victims and excludes all other genders from its purview. This sets the burden of proof on the accused, who is as per the Code, a male, to prove beyond reasonable doubt that he had not committed the offence.
Section 376 of IPC lays out the punishment to be given for rape to servants of the State and other persons. Here too, it is presumed that only women can be victims of rape and all other genders have not been given protection under the Section.
Sections 376 B/C/D – Offences committed by Public Servants involving Seduction
These sections outline the offences committed by public servants wherein a woman is seduced. Intercourse committed under pretenses are considered to be punishable under IPC. However, these provisions do not elaborate upon the liability of a woman if she commits the same offences while being in positions of power.
This provision further reinforces the idea that women cannot abuse or misuse the power they have been given and presumes that women also do not possess the requisite guilty mind for the commission of such crimes.
Section 493 – Cohabitation caused by a man deceitfully inducing a belief of lawful marriage
This section states that every ‘man’ who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and convinces her to cohabit or have sexual intercourse with him under the same belief, shall be punished with imprisonment and fine.
This section too presumes that the crime of cohabitation caused by deceit can only be committed by men. The law does not consider that a woman or a person of any other gender can be just as capable to deceitfully induce a person into cohabitation with themselves. The Code assumes that men and people from other genders need not be given protection under this law, as they cannot be victims to it and men, specifically are capable of looking after themselves.
Section 498A – Husband or relative of husband of a woman subjecting her to cruelty
This section sets out the punishment for men if they subject their wife to cruelty such that it drives her to commit suicide, causes grave injury or danger to her life, limb or health or leads to harassment of the woman with the intent of coercing her or any other person related to her to meet any unlawful demands with regards to property or any valuable security or even on the account of her failure to meet such demands.
This provision is highly susceptible to misuse and has undergone the same countless times. Moreover, it does not recognize the fact that even men and people from other genders can undergo cruelty. Although the Supreme Court of India has recognized the existence of different aspects of cruelty which a person may be subjected to, it is yet to acknowledge that protection under this section must be made available to people from all genders.
Section 509 – Word, gesture or act intended to insult the modesty of a woman
This section states that whoever with the intention of insulting the modesty of any woman, utters any words, makes any sounds or gestures, or exhibits any object intending for such word or sound to be heard or such gesture or object to be seen, by such woman or intrudes upon the privacy of such woman shall be punished with imprisonment and fine.
The section therefore, makes any word, sound, gesture or act intended to insult the modesty of a woman a criminal offence. However, it fails to consider that such acts could also be committed against men and people of other genders. This further places the ideal of female modesty on a pedestal, and assumes that such crimes cannot be committed against other genders.
Transgenders and the Other Genders
A general reading of all the above-mentioned sections indicates that the Code mainly focuses and acknowledges the existence of two genders – males and females. None of the provisions provide the necessary protection to this community and so, the transgenders and other genders are grossly overlooked even by the IPC.
In National Legal Service Authority (NALSA) v. UOI [AIR 2014 SC 1863], the Supreme Court held that the right to equality, enshrined in Article 14 of the Indian Constitution was framed in gender neutral terms, i.e., it is available to “all persons.” Consequently, these rights must exist for transgender persons. With this the Supreme Court acknowledged that the right to equality is available to the ‘third-gender’ as well, but, so far there has been no recognition given to persons of genders other than the binary and transgender.
Impacts on Society
- According to data collected by the National Coalition Against Domestic Violence, 1 in 4 men have experienced some kind of physical violence by an intimate partner. This indicates that the number of crimes against men have gone up.
- The chastity and modesty of women are concepts that are still glorified in the society and the law recognizing them further, contributes to it. 20.4% of men were found to have been affected by sexual violence in our country and this shows how dangerous it is to place one gender’s modesty over another.
- As none of these provisions can be used to incriminate women if they commit these crimes, they propagate the idea that women are incapable of committing these crimes when it is far from the truth. In 2019, women criminals comprised 6.15% of criminals convicted under IPC as per NCRB reports.
Therefore, these statistics indicate that our society is largely unaware of the crime women are also capable of committing. By attaching a lower social status to them, it is assumed that only men are capable of committing heinous crimes, when clearly that’s not the case.
Conclusion
Gender biased laws are not an uncommon phenomenon in India. Owing to this psyche, several communities have been denied equal rights otherwise guaranteed by the Constitution of our nation. Although, women and children constitute the vulnerable sections of our society and require special focus on their protection, this protection should not be provided at the expense of any other community.
Moreover, there is a dire need to recognize and extend protection to the people belonging to other genders in our society. Therefore, we must work for greater equality in our laws and reduce the gender bias which is a result of and also a creation of our society.
References
https://www.ijlmh.com/wp-content/uploads/Gender-Bias-in-the-Indian-Penal-Code.pdf
https://blog.finology.in/Legal-news/gender-biased-laws
https://www.ejusticeindia.com/is-ipc-gender-biased/