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FINAL DRAFT

SUBJCT : BASICS OF LEGISLATION


TOPIC : " Need for Gender Neutral Legislation "

Submittd To :
Mr. Anil Sain
Asstt. Prof. (Law)
Dr. RMLNLU, Lucknow

Submitted By :
Aman Kharb
Roll No. : 13
Section- A
2nd Smstr, 1st Yar
B.A. LL.B. (Hons.)
Dr. RMLNLU, Lucknow

Table of Contents

1.
2.
3.
4.
5.
6.
7.

Introduction
Historical Perspective
Article 15 (3) of Indian Constitution
Section 497 Adultery under purview of IPC
Section 375 Rape
Section 354 A
Conclusion

INTRODUCTION
Law is perceived as a tool for social engineering by the jurists and the scholars. So by its very
concept it has to be contemporary and progressive, and certainly not retrograde. In form, the
law must ensure equality and liberty to each individual and confine government to its
one legitimate legislation Viewed from this perspective, a law which may have been
effective at a given point of time, require a re-look at a different point of time in order to
effectively cater to the needs of a changing society. A vibrant legal system cannot afford to
work on the basis of pre-conceived notions of who is always the victim and has to

continuously fine tune itself in the context of the changed circumstances for its efficacy and
relevance.
As government exercises a monopoly on the legal use of force, laws should be framed in such
a manner that governments every action must be objectively controlled and explicitly
authorized. Such rigid constraints leave citizens alone to pursue their lives, free of any fear.
Basic functions of law are :
1) Secure order in the society
2) Establish balance between conflicting interests in the society
3) Maintain stability in the society, etc.
In this research, the researcher will focus on the gender biased laws existing in contemporary
times. Since time immemorial, all civilizations have been dominated by male gender, but it
has been immense in Indian society. But slowly and gradually, thoughts of people have
become liberal bringing equal status to men and women in many parts of the world. But in
India, due to the rigid structure of its society, the male domination still exists and to bring
women at par with men, our laws have been amended many times. But in this attempt,
lawmakers have given certain privileges to women which have endangered the equality of
male gender and itself contradicts the basic element of law Equality. When law is clear
and precise and unbiased to any of the sections of society, it leaves no room for injustice. If a
law favors any particular section of society more, than there are chances of it being used in an
unfair manner.

HISTORICAL PERSPECTIVE
Masculine domination is a universal phenomenon that has existed since time immemorial and
has deeply affected the quality of life of feminine. Many philosophers have closely examined
and are of view that the patriarchal family, private property, and the state arose together. The
inequality of power between men and women was further strengthened with the origin of the
state, in which war played a decisive role. The rulers of the state were those who had been
victorious in war, and as a result, from its origins the state has been dominated by men.

Everywhere in the world, in spite of some progress mostly in Western countries in the past
thirty years, womens conditions still constitute the dark underbelly of the contemporary
world. Our Indian society is also an apt example where women have been treated as inferior
to men, forced into submission, ridiculed, exploited economically and sexually. But with the
advent of 21st century, people have become aware of their rights. This awareness among
female gender has forced the lawmakers to contemplate over the rights of women. And to
bring women at par with men various laws have been enacted, such as Domestic Violence
Act, various sections of IPC Criminal Law(amendment) Act, etc.
This phenomenon is universal because societies have proven extremely creative when it
comes to designing ways of oppressing women and girls as means of social control that is,
literally keeping women in their place. In this section, we review the different forms of
masculine domination along five dimensions of social life: security, integrity, freedom,
dignity and equality. This review exposes the limits of multiculturalism and cultural
relativism: the protection of ethnic diversity and indigenous way of life should not come at
the expenses of one half of humankind. Cultural relativism and traditions cannot be used to
justify the oppression of women. Similarly, to expose all the different forms of domination
that women endure is not anti-male. It is not the same as saying that men are evil. It is to
promote the proven view that equal societies are better, more stable and progressive and
overall less violent than unequal societies. Additionally, research has shown that development
for low-income countries is often hampered by gender restrictions. Therefore, gender equality
is better for everybody, men and women .

Article 15 (3) of Indian Constitution


Article 15 : Prohibition of discrimination on grounds of religion, race, caste, sex or place of
birth.
(3) Nothing in this article shall prevent the State from making any special provision for
women and children.
This article states that the state will not discriminate anyone but can still make provisions for
the empowerment of women. The process of empowering women in our country is going
since 1950-60s and yet nothing much has been achieved.

As discussed above that for the advancement of the society, equality is an element that is
indispensable. In our country women have been suppressed for years which forced the
lawmakers of our country and other parts of the world to constitute laws that are women
friendly and can help in their upliftment. Making special provisions for upliftment of a
section is one thing but depriving another section of society, for safeguarding someones
rights, is totally a different thing. The researcher contends that special provisions for women
have been made and should be made but making special provisions for women does not
means depriving men of their rights. Many philosophers have proved that equal societies are
better, more stable and progressive and overall less violent than unequal societies and gender
restrictions always hamper such kind of growth.
Many special provisions made for the upliftment of women have not shown much positive
results rather have created more complexities in society by depriving men of their rights.

Section 497 - Adultery under the purview of IPC


Section 497 of Indian Penal Code says that Whoever has sexual intercourse with a person
who is and whom he knows or has reason to believe to be the wife of another man,
without the consent or connivance of that man, such sexual intercourse not amounting to
the offence of rape, is guilty of the offence of adultery, and shall be punished with
imprisonment of either description for a term which may extend to five years, or with fine,
or with both. In such case the wife shall not be punishable as an abettor.

In simple words it can be said that women are immune to adultery and cannot be punished
under Section 497. Many a times, this section has come under the hammer of critics
claiming this section to be promoting gender biasness and inequality in the society.
The definition of this section clearly states that the women in no case can be prosecuted as an
abettor. Moreover, the scope of this section extends only up to the masculine gender of
society and women in no case can be prosecuted even if she has actually acted as an
adulterous lady. This automatically reveals as to how this law is a gender biased law, where
the women are given privilege beyond reasonable doubts. Such an unreasonable privilege is a
hindrance to the concept of a gender neutralized society which every country in the modern
era aims for.
Many times it has been argued that the section contradicts Article 14 of the Constitution,
which guarantees the right to equality before law, on account of the fact that it leaves out
the woman from the purview of punishment while punishing her male counterpart. However,
such concerns were laid to rest due to the presence of Article 15(3) of the Constitution,
which states that, 'Nothing in this article shall prevent the State from making any special
provision for women and children'.

Section 375 Rape


According to Section 375 of the Indian Penal Code as well as according to the amended Act,
a man is said to have committed rape/sexual assault if he has had sexual intercourse with a
woman against her will and without her consent.
Even if a woman has given her consent for sex, the man would be deemed to have committed
rape when

her consent has been obtained by putting her or any person in whom she is interested
in fear of death or of hurt.

the man knows that he is not her husband, and that her consent is given because she
believes that he is another man to whom she is or believes herself to be lawfully
married.

at the time of giving such consent, by reason of unsoundness of mind or intoxication


or the administration by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and consequences of that
to which she gives consent.

There is an inherent bias in the definition of rape or sexual assault itself. According to this
law, rape or sexual assault is a criminal act that is committed by a man against a woman. Not
only that, the crime is entirely in the mind of the female victim.
Another aspect that stands out in this law, as with many other pro-women laws, is the urge
to protect the female at any cost, even if it means innocent men are thrown into jail, the
judicial system is taken for a ride, and public resources and time are squandered to satisfy the
whim of a dishonest, criminal minded, depraved woman.
When a crime is so loosely defined and when the law is severely biased towards the woman,
and when the sole testimony of the female victim is enough to charge or convict the
accused, there are many chances of the law being misused. Further, the provision for
monetary relief to a victim is a strong incentive for a woman to make false allegations of rape
to get compensation.

Conclusion
To safeguard someone weak is one thing but not penalizing him for his wrongdoings is
another thing. As already discussed above, the condition of women in our society has been
worse and have always been suppressed and considered fragile by the masculine gender.

21st century is considered an era of change for our country, people are changing socially,
economically, mentally and orthodox traditions are being rejected. With this gradual change
there has been one more change and that is the change in attitude of masculine gender
towards women. This change persuaded the lawmakers to draft special provisions that could
prove to be useful in upliftment of women in our society.
The researcher contends that to uplift a particular section of society does not mean to make it
immune to the punishment. The loopholes in the law have been identified by the people and
are being misused on a large scale. For example at many instances it has been observed that
to solve personal tussles a man using a woman charges his opponent of rape. The question
whether he was convicted or not comes after but the point of contention is that there is no
remedy for that person who has suffered harassment.
The researcher concludes that the point of contention is not the provision of special
provisions for women but the loopholes, gender biasness in these special provisions. Giving
special privileges to women is justified on the ground of upliftment of women in society but
making them immune to law and not penalizing them for their wrongdoings is no where
justified on any grounds.

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