Why Indian Laws Are Biased To Men?

by Sarthak Chaturvedi and Divyanshu Raj

Introduction

‘Man is a social animal.’ Those are the words of Aristotle, encompassing all and not just men in particular. Society has been in existence since the time immemorial and people have been living together in harmony and distress at the same time. The story of human beings as a society has always been about this shift from distress to harmony and in this process the protagonist has always been the rules and law.

Law is the night in shining armour of a society to bring peace and tranquillity to it. It provides structure and meaning to living. Law has been in existence since the society itself, it was in the form of tribal rules, religious scriptures, spiritual beliefs or even the modern legal structure as we know of. Many changes have been made in this law over time and how it should be enforced, but one thing has been common throughout time and space, is that it has always aimed at equality. Thus is the Constitution of India dreams of its people to ensure this equality as mentioned from Ar. 14 to Ar. 18[1]. But as we look at the new criminal laws passed by the Indian Parliament, this right to equality is missing, focusing all its ideological energy is Nari Shakti. Empowering women is great, it has been in process since the Independent India was formed, but overshadowing the right of men in this process is not what the concept of equality envisages.

This divide in the powers and rights to two of the largest genders in India is prominent in the new substantive criminal law- BhartiyaNyayaShahita, 2023. This divide starts being highlighted from the very basics. 

Biasness in the Penal Code

There is a common saying that, “Men can take care of themselves” and here what all the problem lies.

1.    Anti-Dowry law[2]:

In Indian Criminal Law death of a married women due to any unnatural reason within 7 years of marriage is considered as Dowry Death, the main suspects are considered to be her husband or In-Laws. But the same is not the case vice-versa, when a man dies under similar circumstances, it is neither termed as dowry death nor the suspicion is laid on the wife or anyone martially related. The mental and physical condition of a man is also not considered under such conditions, where according to the Save Indian Family Foundation, between 2006-2015, 1,82,583 married men committed suicide due to some sort of domestic violence, which includes mental, physical, financial or sexual assault. No importance is given to the suicide note as evidence when in many cases the husband has explicitly mentioned his wife or in-laws as the reason of committing suicide.

According to NCRB report, more than 3300 men were burnt alive per year. But these cases were not reported under Sec 304B[3], because Sec 304B of IPC is primarily concerned with death of a woman caused by any burns or bodily injury, which is not applied in the case when a man dies.

2.    Anti-Rape Laws [4]:

The list of Indian Criminal Laws being biased toward men is a long one, where not just in cases of Dowry Death are men left aside by the justice system, but the main problem is that the Indian Penal System does not even consider the possibility of man getting sexually exploited or even raped. Indian laws in general do not even considered men as victims of rape cases in India.

In a recent study it was found that out of 222 Indian men surveyed, 16.1% had been coerced into having sex, even after that male rape is not considered as an offence in India. Delhi High Courthas aptly expressedits worries over 'alarming increase of false rape cases' as the court phrased it. The same is the view of several other High Courts in the nation and even the Supreme Court.

Penal Law, i.e., section 375 of Indian Penal Code and section 63 BNS, statesthat rape is committed when a man have intercourse without the will of a woman. But there are no guidelines to prove the woman's will. Where in many cases it has been seen that the woman entered into a relationship on her own free will and then later on accused the man of committing Rape.

Section 376, IPC further reinforces the gender bias of Sec 375. In which, under a condition where a male officer holding a higher position, seduces a female officer working under him and commits rape then he is convicted for harsher punishment, and no such provision is when a female officer is superseding a male officer makes certain sexual advances then noconviction is levied on her, which in turn shows how the present legal system in turn consider women as inferior.

To add as per Sec 69 of BNS[5], if a man by deceitful means or making by promise to marry to a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape will be convicted for the same. The question here is how will the person prove that he had no deceitful intention, when in such case the accused is considered guilty until proven innocent. On the contrary if a woman enters into a physical relationship with a man by promising to marry him and then breaks up with him, even if she had bad intention, then also no action is being taken against her.

Rape case being a cognizable offence, many a times police harasses the accused unnecessarily. Even when there is a pendency of court’s decision in a rape case, the person accused is considered a rapist already by the society. In many a cases the person is thrown away from the locality, expelled from his job and in whole considered as an outcast of the society. This shows that the accused is harassed because of the delayed justice and long lengthened trial proceedings in such cases. This could be sought out with the establishment of dedicated fast-trial court for speedy trials.

In a Kerala High Court judgment, "Sec 376 is now a gender neutral provision, if a woman tricks a man under false promise of marriage she can't be prosecuted. But a man can be prosecuted for the same offence. What kind of law is this? It should be gender neutral."

Before December 2012, before the Delhi gang rape case a man was not that easily accused of rape, the acquittal percentage of men in rape cases then was 46%, but afterNirbhaya Case[6], rape laws were strengthened, made even easier for women to file a case and this lead to the filing of false rape cases, following it was a surge in the number of cases and also as per the reports in the year 2013, the acquittal percentage of men in rape cases increased to 75%. This shows that the number of false rape cases filled by women was increased as a leniency was shown in accusing a man.

Following on these lines, in the SuneetaPandey v. State of UP[7], 2023, Allahabad High Court said that a woman cannot be charged for rape, but if she facilitated the act of rape with a group, she may be prosecuted for gang rape. This case law shows how there have been instances where the women have committed such atrocious acts but the present criminal laws have nothing to penalise them with.

3.    Sexual Harassment at workplace:

Workplaces in India lack any law protect the male employees from mental, verbal or sexual harassment. India got itself a dedicated sexual harassment prevention act after the Vishaka Case[8] of 1997 where Indian Courts for the first time relied on an international human rights law instrument, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to establish guidelines known as the Vishaka Guidelines. Even under this act no provision was made for a potential danger faced men all over the nation against the sexual harassment they faced. According to a National Commission for Women research from 2022, 1.4% of males in India had experienced sexual harassment, and 3,000 incidences of sexual assault on men were documented in India in 2022. This represents a huge increase from the 2,500 recorded cases in 2021.Another poll, conducted by the Economic Times, discovered that 29 to 43 percent of respondents agreed that they were harassed by female co-workers.

4.    Molestation

Section 294, 323, 354, 509 of the Indian Penal Code, penalises persons committing molestation. But the same point of no provision whatsoever related even to the idea that a man could be molested is reflected in these sections. The new laws also played on the same terrain of not considering even the possibility of a man being molested.Several women take advantage of such laws, and this statement does not suggest that women are not molested or that men are not a part of the crimes of molestation committed against women, it is just that, defying the mere possibility of a man ever being molested by any other person. According to the Data given by National Crime Records Bureau Delhi 30,000 molestation cases were filed during the year 2013-2014 and 75% of cases amongst them were false.

With increase in the number of false cases, there is a very pressing issue of men committing suicide due to these false allegations, the report shows more than 3500 men commit suicide in India every year due to molestation cases[9].

5.    Other Pressing Issues:

Same could be seen with other provisions of law empowering women but at the same time, not even thinking of men on the equal grounds. This could be shown with the provisions related to Outraging Women’s Modesty (Sec.354 of IPC) where in TarkeshwarSahu v. State of Bihar[10], court held that modesty is only related to women, Voyeurism (Sec.354C of IPC and Sec.76 of BNS) and Stalking (Sec.354D of IPC and Sec.77 of BNS). This is a pan India issue and is upgraded by the new laws to be enacted.

Rationale behind Gender Neutral Laws

"The idea develops from the very fact that men can never be victims of rape as they are aroused by any sexual act, thus, implying the consent on their behalf. However, this is to say that this sort of arousal in the male body can not only be caused due to the fact that they wanted to be a willing participant. But studies have shown that arousal can also be caused by the fact that it could be due to fear, humiliation, and anxiety which could lead to such erections.”[11]

Way Forward:

·      In 2021, following this depressing issue, a plea was filed in the Supreme Court to set up a National Commission for Men, this would help in formulating the laws in accordance with the ideas of Equality and with this the number of male victims of these anti-men laws could be accurately measured.

·      The POSH Act, which stands for the Prevention of Sexual Harassment of Women at the Workplace, is a landmark legislation in India aimed at preventing sexual harassment in the workplace. A very dire need is to amend this statue and to add men as well as LGBTQ+ community in this law, wherein the Supreme Court of India in the National Legal Services Authority v. Union of India[12], 2014, declared transgender as the third gender giving them equal status, in theory this has been achieved, but truly an equal society could be achieved once this becomes a practicality.

·      To address the issue of women, MahilaAdalats are held, dedicated to solve the issue related to women, this could also be implemented in the case of male community, PurushAdalats could be set up dedicatedly working for the welfare of men in India.

·      As is it seen in many countries that as the economy grew, the number of rape and sexual harassment cases dropped significantly. Data shows that Gross Domestic Product of a Country is inversely proportional to the number of rape and sexual harassment cases.

·      This issue could also be addressed with mass awareness among the society, as still many people believe that a man cannot be molested or sexually harassed or even raped. This thinking, this ideology has to be eradicated.

·      Lastly, as in most of the provision under Chapter V of BNS, 2023 write ‘man’ for the victimiser, this should be replaced by ‘person’ to have a more concave view towards the issue.

·      The 172^nd Law Commission of India in March 2000 recommended that rape laws should be made gender neutral to protect the rights of male victims too, implementation and adaption of this suggestion would be a very positive way forward.

Conclusion:

The idea here is to achieve utmost and the purest form of feminism and equality as the same time. Women Empowerment must not be considered as a way to disempower men. Society need to understand that men could also be raped and molested and sexually harassed and stalked in public or over the internet. The then Minister of Women and Child Development said in Parliament that only 467 male child abuse cases were lodged with the police out of the 36,321 reported incidents in 2016.

According to a NCRB Report, total number of suicides committed by married men was 81,063 while on the same page suicides committed by married women was only 28,680. This shows that even after considering all the other factors involved in the above mentioned data, there is a very high possibility of bad laws, fake cases and lack of male rights awareness which leads to such conclusions.