Introduction
According to Article 14 of the Indian Constitution:
‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.’[1]
The Indian Constitution guarantees ‘Right to Equality as one of the fundamental rights to each individual residing in India. However, even after 73 years of independence, we are compelled to raise a question, “is every individual treated equally in India?” We hear the word “EQUALITY” almost every day as it has been on every mouth. Everyone has been talking about Equality and how it’s a basic human right. But the reality is far from that as discriminations are still one of the primary problems in our country. People are being discriminated on certain grounds like religion, race, caste, gender among others. There are certain Indian laws and statutes which contradicts this notion of equality. In other words, there are gender biases or gender inequality in Indian laws. In this article, I will discuss specifically gender biases in the Indian Penal Code.
Historical Background
At the time when IPC was drafted and codified in 1860 by Lord Macaulay, Indian society was mostly patriarchal where there were male domination and women were considered as the weaker gender in the society. They were made to submit to the male domination and were not allowed to go out of the house as they were mainly meant to run the houses to support their husbands and look after household chores. There was a broad inequality in access to educational, financial and physical resources to women. There was a general conception that women are more prone to danger than men.
Owing to these atrocities and discriminations which women used to face, the laws made at that time were generally in favour of women so that they could be brought at equal footing with men. Indian Penal Code was also drafted keeping in view the idea of women empowerment so that they could be no longer a subject to men and have their own identity.
However, with changing times, the demand for the law has also changed and therefore certain provisions of Indian Penal Code have now become extremely one-sided and biased against men. Even after 70 years of the formation of Indian Constitution which guarantees equality to every individual residing in India, our legislators have not been able to adapt the IPC according to the changing dimensions and needs of the people. The laws formed at that time were fully legitimate according to the needs of that time, but in the 21st century, we need to reform the IPC as to the demands of new times.
Gender Biased IPC
Indian Penal Code (IPC) is the main criminal code of India which comprehensively covers all substantive aspects of criminal law in India. It defines all types of crimes and prescribes punishment for the person committing the crime.
As per the section 2 of IPC, “Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India.[2] As established by this section, IPC does not discriminate between criminals based on gender and everyone who commits a crime will be subject to punishment under it. But at the same time, there are certain provisions in IPC which favour women and goes against men. This discrimination has acted as a cover to protect the malpractices of women on several occasions and has led to the widening of the gender gap. Let’s look at some of such provisions in IPC:
Section 304B(Dowry Death):
This section of IPC deals with the cases of dowry deaths. According to section 304B-
Dowry death.—
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown 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 called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation.—For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.[3]
In connection to this, section 113B of the Indian Evidence Act presumes that the death of a woman is caused by a man if he subjected the woman to cruelty or harassment soon before her death. It proves the husband and relatives as guilty even though they have not actually committed the crime.
There is no denying the fact that women do need protection but this provision is widely misused by women across the country for their personal agenda where the innocent families are prosecuted.
Supreme Court in the case of Sushil Kumar Sharma v. Union of India observed that this provision should be used as a “shield” and not as “assassin’s weapon.”[4]
Section 498A (Husband or relative of husband of a woman subjecting her to cruelty):
This section talks about the cruelty caused by a husband and his relatives on his wife. According to this section:
Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.[5]
The major problem with this section is that it is widely misused by married women to satisfy their personal grudge. The Supreme Court in Sushil Kumar Sharma v. Union of India pointed out that cases under section 498A are being filed due to personal vendetta and no real cause. According to a report by the National Crimes Bureau in 2012, nearly 200,000 people were arrested without any established ground of dowry offences including 47,951 women. This shows the grave misuse of this provision by women without any reasonable grounds.
In the case of Preeti Gupta v. the State of Jharkhand, the Supreme Court warranted the legislature to have a serious relook at this provision. The Court said: “It is a matter of common knowledge that exaggerated versions of the incidents are reflected in a large number of complaints”. The Court took note of the common tendency to implicate husband and all his immediate relations. “It may, therefore, become necessary for the Legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with”. It was also observed that “by misuse of the provision, new legal terrorism can be unleashed”.[6]
This section is strictly biased towards men as it only protects women from the cruelty by her husband and his relatives but says nothing about men who face cruelty in their own houses by his women and does not protect his rights. However, cruelty is ground for divorce in personal laws for both men and women but this particular section fails to recognise the cruelty done on men and therefore it’s strictly biased towards men. The legislature needs to look at this aspect and amend it accordingly.
Section 375 (Rape):
This particular section of IPC deals with the offence of rape and also prescribes the punishment. As per section 375:
Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—
(First) — Against her will.
(Secondly) —Without her consent.
(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
(Fourthly) —With her consent, when 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.
(Fifthly) — With her consent, when, 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.
(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.[7]
This section recognizes men as perpetrators and women as victims of rape. Only a man can commit rape and not women. It fails to recognise that men too are raped but due to the social notion that men can not be victims of rape as they are physically strong even if young and vulnerable, they cannot make it public as women can. Also, often men are seen as a gender which always wants sex. A men rape victim fears sharing it with others as society does not recognise men as rape victims.
If a man rapes a woman, he’s punished as per the provisions of section 375 but the same is not true if a man is raped by a man or women. A man is punished if he rapes a minor girl but the same is not true if a women or men rape a minor man.
Supreme Court in the case of Sakshi v Union of India, directed the law commission to review the issues raised by the NGO Sakshi. Therefore law commission in its 172nd report recommended to widen the scope of rape laws and make it gender-neutral.[8]
After the postponement of the amendment in 2013 due to outrage because of the Nirbhaya rape case, once again a bill was introduced in Rajya Sabha in July 2019 and approved by the cabinet in August 2019 to make the rape laws gender-neutral.
Conclusion
We can now easily conclude that some of the provisions of IPC are gender-biased and they discriminate against men. Crime does not see gender and neither should our laws. These provisions are in violation of the basic human rights and the fundamental right of equality guaranteed under article 14 of our Constitution. These laws make innocent men suffer punishment even though they are not actual criminals. The times are gone when women were considered a subject of men and they had no say about it. Our laws have overpowered the women which enables them to misuse the law which is a crime in itself.
By-
Abhishek Kumar
Banaras Hindu University, Varanasi
[1]. Art.14, Constitution of India, 1950
[2]. Section 2, Indian Penal Code, 1860
[3]. Section 304B, Indian Penal Code, 1860
[4]. Sushil Kumar Sharma v. Union of India (2005) 6 SCC 281
[5]. Section 498A, Indian Penal Code, 1860
[6]. 243rd report of Law Commission of India on section 498A, IPC
[7]. Section 375, Indian Penal Code, 1860
[8]. 172nd law commission report on the review of rape laws.
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