Updated: May 11, 2021
The article talks about the growing need for gender-neutral laws in India. It focuses on the COVID-19 induced lockdown and the significant increase in the rate of domestic violence and sexual abuse. These can be attributed to the restricted paths of escape for the victims owing to the requirements of the lockdown. Further, it talks about the violence against men and the transgender community, which are often overlooked by the lack of provisions to protect them against such abuse. The article concentrates on how legislation should be drafted regardless of the sexual orientation of the victim. It further encourages suitable punishment for the perpetrators.
Gender-Neutral, Covid-19, Lockdown, Violence
In India, gender discrimination has always been a subject of grave concern and this social issue was re-kindled during the COVID-19 outbreak in an amplified manner. The lockdown highlighted the growing importance of gender-neutral laws in the country. The lockdown witnessed an upsurge in violence meted towards women and non-binary citizens. However, the existing laws were mainly gender-specific and mostly provided relief to women. Even though there are some provisions like the Protection of Transgender Rights Act, 2019 the rights of non-binary people are not as pronounced as that of women. Therefore, there was a dearth of strict laws which would protect the rights of non-binary people.
There is a common notion that only women can be victims of physical assault and therefore the laws against rape and the Domestic Violence Act, 2005 provide relief for them specifically, disregarding the other genders. Such notions make it even more difficult for men and non-binary people to talk about the sexual abuse and physical violence that they face due to the fear of humiliation. It is about the time when people start to acknowledge the fact that the exploitation of men and non-binary people exists and there is a need for a gender-neutral approach to this problem.
What is Meant by Gender Neutral Laws?
To understand what is meant by gender neutrality, we should first understand the meaning of gender. People often use the words ‘gender’ and ‘sex’ interchangeable however they are not the same. Sex usually refers to the biological characteristics that differentiate between a male and a female. On the other hand, gender is a broad spectrum and is not just limited to being a male or female. It is what one identifies themselves as which can be binary, non-binary, bi-gender or agender. It is the socially constructed identities. Therefore, laws should be impartial and should not discriminate or distinguish between genders. The perpetrators should be punished regardless of the gender identity of the victim
The Impact of COVID-19 on Gender Rights in India
On 25th March 2020, a nationwide lockdown was imposed to curb the community spread of the COVID-19 disease. As announced by Prime Minister Narendra Modi, the motto was to “Stay Home Stay Safe”, however for some people ‘home’ and ‘safe’ did not go hand in hand.
Women were burdened with the responsibility of providing care to the family members and managing household chores. Moreover, many of them suffered a decline in their businesses. One of the reasons here was the gap that came into the picture between male-dominated sectors and women- dominated businesses. The relief was provided to male-dominated sectors whereas traditional sectors such as textiles and handicrafts mostly run by women were not provided much relief. However, their plight does not end here. There was a significant increase in reports of domestic violence and sexual abuse.
The National Commission for Women (NCW) reported an increase in domestic violence cases and how the requirements of the lockdown did not allow the victims to escape. One of the many complaints that the NCW received was from a woman who was unable to travel to her house in Delhi and her husband was abusing and beating her. She wanted to reside in a hostel for the remainder of the lockdown and did not want to approach the police because even if they arrested her husband, she would have to stay with her in-laws, and the abuse would continue.
However, what was not given much attention was the abuse and the violence faced by the members of the LGBTQ+ community. The lockdown increased the physical and mental torture faced by the members of the LGBTQ+ community. They faced torment, both verbal and physical among other difficulties. A counsellor from the NGO Nazariya said that they are under constant surveillance at home; the clothes they wear and the way they speak is monitored apart from outright abuse. Furthermore, whenever they try to defend themselves they are often subjected to physical brutality. Shruti Neytra, the co-founder of the LGBTQ online youth support group Yaariyan spoke about an incident where a young gay man named Kumar, living with his family in a town in northern India was physically assaulted by his family members. They resorted to physical violence when he was found chatting with someone or sharing photos and also called the police to file a report against him. Even the hijra community, which is a third-gender community in India, faced increased discrimination and violence during the lockdown period. The spread of transphobic messages increased and there were posters stuck near the Hyderabad metro station that read “Corona Virus Hijras” which instigated violence against the members of that community. Apart from this, the third gender community also faced trouble in getting easy access to healthcare, when it was the most important. In India, hospitals do not have separate wards for transgender or non-binary people and often they face discrimination and stigmatization from healthcare providers.
Analysing Existing Legal Provisions in Context of India Today
The COVID-19 lockdown has acted as an eye-opener and has highlighted the need for gender-neutral laws in India. It has brought to light the fact that even though Section 377 of the IPC has been decriminalized in the landmark judgment given in the case of Navtej Singh Johar v. Union of India, people belonging to the LGBTQ+ community still face discrimination and is denied basic rights. Keeping in mind the current circumstances and the violence faced by the LGBTQ+ one realizes that there is no specific legislation that protects them in such situations. Most of the legislations are gender-specific and are related only to women such as the Domestic Violence Act, 2005. According to this act, the “aggrieved person” is a woman and there is no provision for men or non-binary people. Even the rape laws in India as mentioned in Section 375 and 376 of the Indian Penal Code, 1860 are gender-specific and talks about the offence of rape as one that always has a woman being brutalised by a man. It discounts the fact that physical and mental injuries can be caused to men and non-binary people as well and men are not always the perpetrators.
Part III of the Constitution of India ensures the basic rights of every citizen of India regardless of their gender. Article 14 states “[t]he State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” and Article 15 (1) states “[t]he State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Both these articles promise that there will be equality and no discrimination before the eyes of the law. However, there are no legislations to protect these rights of the people. Even though cases of assault on a male are lesser than cases of assault on a female, it does not mean that these assaults are non-existent. Furthermore, there are several cases of assault on non-binary people, but they are not given the needed legislation to safeguard their dignity.
Initially, legislations were drafted in favour of women because of the existence of patriarchy. However, the times have changed and it is important to have gender-neutral laws. Legislations in place, protect the citizens and are made to maintain law and order in society. They are meant to uphold the dignity of the people and ensure that society runs smoothly. Therefore, laws should be impartial and should be favourable for both binary and non-binary people. The rape laws and the Domestic Violence Act should be transformed and should have a gender-neutral perspective. Lastly, the laws should be made in a manner that the perpetrator gets punished regardless of the gender of the victim.
[*] Yashvi Mohta is an undergraduate student from Jindal Global Law School, India. For any discussion related to the article, she can be contacted via mail: email@example.com.
Preferred Citation – Yashvi Mohta, “Need of Gender Neutral Laws in the Light of the COVID-19 Pandemic", Syin & Sern Law Review, Published on 9th May 2021.