Gender biases in the Indian Penal Code: A look at the provisions

Gender biases in the Indian Penal Code: A look at the provisions

Law | Feb 9, 2019 / by MAYANK BARMAN
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The judiciary of India lays strong emphasis on constitutional morality which they regard as one of the core principles of a constitutional democracy such as India. India, being the world’s largest democracy and having the longest written Constitution in the world, people’s adherence to the constitutional principles such as rule of law, social justice, individual freedom, egalitarianism becomes of utmost importance. 

The Indian Penal Code was drafted in 1860 by Lord Macaulay, a time when the society was largely patriarchal and the laws were generally framed in favour of women since they were considered the weaker gender of the society. Times have changed and India has a constitution which treats every human equally. However, certain provisions of the Indian Penal Code are extremely one-sided and have not really been adapted to the changing circumstances of society. When there is so much buzz about social, economic, and political equality then why cannot a country with the longest Constitution and the largest democratic setup have legal equality. The notion of legal equality implies that every citizen should be subjected to the same law and must be penalised equally. Though our Constitution allows special protection for women, backward classes, minority groups, to name a few, yet the IPC being a pan-Indian law must apply equally to everybody in the 21st century.

Section 304B – Dowry Death

This Section of the Indian Penal Code deals with dowry deaths. It says that when a woman dies within 7 years of her marriage due to burns or bodily injury and it is shown that 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 is called dowry death. The husband and such relatives are considered responsible for her death. The punishment prescribed for the offence is life imprisonment for not less than 7 years which may extend up to life imprisonment. In connection to this, Section 113B of the Indian Evidence Act, allows the court to presume that a person has caused the death of a woman who was subjected to cruelty and harassment, for or in connection with, any demand for dowry. This offence is non-bailable and non-compoundable and this naturally sees husbands or relatives as guilty parties to the crime, even though they have not actually committed the crime.  Hence, this provision strictly goes in favour of women, not disputing the fact that women do need protection. But, this provision must be used as a “shield” and not as an “assassin’s weapon” as observed by the Apex court in Sushil Kumar Sharma v. Union of India

Section 498A – Husband or relative of husband of a woman subjecting her to cruelty.

The section throws light on the cruelty suffered by a woman by her husband or the relatives of the husband. The perpetrator shall, in this case, be punished for a term that may extend to three years and shall also be liable to fine.

The major problem of this section is not that it does not give protection to men but it is the recurrent misuse of this provision. This is the reason why the apex court, in the case of Preeti Gupta v. State of Jharkhand, wanted the legislature to have a  serious re-look at this provision. Further, in the case of Sushil Kumar Sharma v. Union of India, the apex court at many instances lamented that cases under S.498A were being filed due to a personal vendetta.  However, a small percentage of 15% accused persons were convicted. The statistics collected by the National Crime Bureau in 2012 shows that nearly 200,000 people including 47,951 women were arrested on unestablished grounds of dowry offences.  This shows how women have misused law for their own selfish benefit without any reasonable grounds. In the same case, the apex court was right in observing that if this law is misused to such an extent then ‘legal terrorism’ could be unleashed in the society.  At the same time, if men are subject to cruelty in their matrimonial home then this provision does not safeguard their rights. However, in case of personal laws, cruelty is a ground of divorce and judicial separation and sees both the parties as guilty of the same, as the case may be. However, under S.498A this is not the case and it is strictly biased towards women and provide no opportunity for men to seek justice if they become victims of the same.

Therefore, it is important for the legislature to have a proper look at this provision and make the necessary changes. The Malimath Committee Report on Reforms of the Criminal Justice System gives a brief overview of the problem -

The harsh law, far from helping the genuine victimized women, has become a source of blackmail and harassment of husbands and others. Once a complaint (FIR) is lodged with the Police under s.498A/406 IPC, it becomes an easy tool in the hands of the Police to arrest or threaten to arrest the husband and other relatives named in the FIR without even considering the intrinsic worth of the allegations and making a preliminary investigation. When the members of a family are arrested and sent to jail, with no immediate prospect of bail, the chances of amicable reconciliation or salvaging the marriage, will be lost once and for all. The possibility of reconciliation, it is pointed out, cannot be ruled out and it should be fully explored. The imminent arrest by the Police will thus be counterproductive. The long and protracted criminal trials lead to acrimony and bitterness in the relationship among the kith and kin of the family. Pragmatic realities have to be taken into consideration while dealing with matrimonial matters with due regard to the fact that it is a sensitive family problem which shall not be allowed to be aggravated by overzealous/callous actions on the part of the Police by taking advantage of the harsh provisions of s.498A of IPC together with its related provisions in CrPC. It is pointed out that the sting is not in s.498A as such but in the provisions of CrPC making the offence non-compoundable and non-bailable.

Section 375- Rape

Section 375 deals only with rapes committed by a man. The section is silent on rapes committed by women on men or sexual assaults on a man by a woman or a man.  A man is punished for rape if he has sexual intercourse with a minor girl but the same is not true if a major woman having a sexual relationship with a minor man. In the case, Independent Thought vs Union of India, it was held by the Supreme Court of India that if a man has sexual intercourse with a minor married girl between the age of 15-18 even if her consent was a free one, it will be considered as rape. Once again, the same is not true in the case of a woman.

It portrays men as rapists and women as the victims of rapes in the country. Also, when rapes on men happen it is seldom reported, and even if they are reported there is no scope for justice, creating a sharp divide on the basis of sex. In 2013, the Congress government passed an ordinance which substituted ‘sexual assault’ for ‘rape’. This ordinance made the recognition of male as victims and female as perpetrators but the word ‘rape’ as outlined in S.375 of the IPC was a significant omission in case of males. The offence of rape does not recognise men as victims and female as perpetrators even today. This shows that the centre was reluctant to make rape laws gender neutral in nature and hence, used the term “sexual assault” when males become victims. In 2013, Justice Kailash Gambhir had made a remark that women out of anger and frustration tend to convert consensual sex as an incident of rape which defeats the very purpose of S.375.  Again, just like S.498A, this provision has played the role of an assassin’s weapon for most women.

There is a notion in the society that due to masculine gender orientation, males cannot be victims of rape even if they are young or vulnerable. A male sexual assault victim may find it difficult to report cases against them due to this myth. There is an added psychological pressure of facing the society that doesn’t believe that rapes can happen to men according to Elizabeth Donovan, a psychotherapist.

Conclusion 

It is evident that a few provisions of the Indian Penal Code are anti-feminist in nature. Crime should be based regardless of sex. These provisions strictly violate Article 14 of the Constitution of India which talks about the fundamental Right to Equality. The discrimination on the basis of sex is infringing the basic rights of a man. These laws are biased and see a man in a superior position and consider women as incompetent members of the society and perhaps that is the reason why laws were initially made in favour of women.

Another problem that has been quite agonising for the men is the frequent misuse of legal safeguards granted to women by the law. False allegations against men disturb the equilibrium of the society, destroy matrimonial homes and also enlarge the burden of the legal system to deal with such frivolous and non-existent matters.

References –

Advocatekhoj. Law Library: Indian Penal Code, 1860. Retrieved from the Advocate Khoj Retrieved from http://www.advocatekhoj.com/library/bareacts/indianpenalcode/index.php?Title=Indian%20Penal%20Code,%201860

Centre for Civil Society. India's law should recognise that men can be raped too. (2014, September 13). Retrieved from the Centre of Civil Society website  https://ccs.in/indias-law-should-recognise-men-can-be-raped-too

Constitution Society. Part III Fundamental Rights. Retrieved from the Constitution Society website http://www.constitution.org/cons/india/p03014.html

Dube. A. Chamber of Salman Khurshid. IPC AND GENDER BIAS. Retrieved from the Chamber of Salman Khurshid Website http://chamberofsalmankhurshid.com/ipc-and-gender-bias/

Ministry of Home Affairs. (2003).  Committee on Reforms of Criminal Justice System Government of India Report VOLUME I : Retrieved from the Ministry of Home Affairs website https://mha.gov.in/sites/default/files/criminal_justice_system.pdf

National Crime Records Bureau. (2012). Crime in India Statistics. Retrieved from the National Crime Bureau Retrieved from http://ncrb.gov.in/StatPublications/CII/CII2012/Statistics2012.pdf

New Indian Express. (2013, May 25). Women sometime file rape cases as weapon for vengeance:  Retrieved from the New Indian Express Retrieved from http://www.newindianexpress.com/nation/2013/may/25/Women-sometime-file-rape-cases-as-weapon-for-vengeance-HC-480614.html

Shrivastava, A. Gender-Neutral Indian Penal Code. Gender-neutral Indian Penal Code: Way for a Gender-just Society. Retrieved from http://www.legalservicesindia.com/article/2011/Gender-neutral-Indian-Penal-Code.html

Supreme Court of India. Navtej Singh Johar v. Union of India. Retrieved from https://www.sci.gov.in/supremecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf

Image credit -  Houston Chronicle

 

 

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Written By MAYANK BARMAN

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