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Gender Neutrality in Rape.

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-Vidhit Verma

Rape has been considered to be an act usually committed against one sex and the laws in India certainly tilt towards woman rather than protecting every citizen and gender.

Despite expanding the definition of rape under the Indian Penal Code to include non-penile vaginal acts of penetration, the said definition continues to conform to a gender-specific notion of rape, based on a predetermined characterization of the victim-perpetrator framework on the basis of genders. Implicating a binary notion of gender, this results in gross injustice and it therefore, becomes imperative to adopt a human-rights-based approach in defining the offence of rape, and negate the role of gender in identifying the victims and perpetrators of an act of rape, and establish equity.
This argument may be pillared on a state’s obligation to not discriminate on the basis of sex, the recognition of transgender rights, and an assessment of the common grounds for opposing gender neutrality in Indian rape laws.It can be said that crimes against women in India have a lot to do with centuries of patriarchy and a skewed sex ratio.
However, the perpetrators often enjoy impunity at the risk of women’s rights and security.

In 2013, one of the most brutal and fatal gang rapes in New Delhi led to not only massive and supremely angry nation-wide protests, but also led to landmark reforms to the existing rape laws. By taking into account the gender and patriarchal attitudes in Indian society, the new laws reform changed the landscape of justice for women by taking a tough stand on crimes against women. In the aftermath of the Nirbhaya gang-rape and death, the Justice Verma Committee was formed in 2013 to review sexual offence laws.
As a consequence, Indian women can now file a rape charge online. Cops are duty bound to register a case immediately upon complaint. Rape remains the fourth most common crime against Indian women so these changes were necessary, and critical.To see the crime as merely a man violating a woman, as it currently is currently being seen, however, is an injustice to those whose story does not fit this ambit.
There is thus, still a great need for further change to India’s rape laws.

On the same idea, a private members’ bill has been introduced before the Rajya Sabha. This bill would introduce amendments in the criminal laws to make sexual offences gender neutral. Re framed language in sexual offence laws would aim to change ‘any man’ and ‘any woman’ to ‘any person’ – a step forward to make the laws gender neutral. “Men, women, and other genders can be perpetrators and also victims of these offences. Men, women and others need to be protected”. 

In understanding the need for this change being pitched, one must first understand what exactly constitutes rape. International law has evolved from viewing it just as penile-vaginal to penile-orifice and then to penetrative-orifice, all within a non-consensual context. By the last legal definition, the physical violation with blunt objects undergone by Nirbhaya at the hands of her gang rapists would be classified as rape.It would by current Indian legal standards as well.
Yet, for instance, if there were to be such an act committed by a woman against a man or even another woman, it would not amount to rape. To be sure, it would be an assault-based crime of some form, but not rape. This, even though the victim would have been forcefully penetrated in a sexual manner by her assailants.The same result would also come about if the victim were a child, as the law would allow for a charge of sexual assault, but not one of penetrative sexual assault, which is codified as male-only.
Many parliamentarians and some activists argue that only members of one sex can rape and only the other can be raped, for rape is only ever patriarchal. The Indian laws are thus very limited in this regard, bringing to light this shortcoming.
Statistically with regards to the existence of both male and female survivors, the US’s Centers for Disease Control in Atlanta has estimated that 18.3% of American women and 1.4% of American men have experienced rape at some point in their lives. Both percentages are likely to be underestimations due to stigma attached to reporting the crime. Ideally, India would be able to provide its own numbers for statistical comparison.

However, given that rape by legal definition cannot be committed against men, there is no good way of determining just how many male survivors exist in India.Considering the argument that equity in a society is cardinal to its good governance, in addition to those discussed above, such a change and broadening of the definition of rape under Indian laws may also be deemed essential. What also need to be considered is that even though women suffer from such crimes in incomparable numbers, the law cannot turn a blind eye to the victims or the perpetrators of other genders.

In conclusion, the impulse to view the rape narrative as exclusively that of a man violating a woman does an injustice to those whose dismal stories and sufferings simply do not fit the mold that is easiest for us to understand and therefore,an imperative need to redefine norms of the society is felt which would help only if the laws are not made to favor any gender rather to determine the acts that constitute this heinous crime which could be committed against any person.


Analysis

Requirement of Creative Interpretation of Law by Tribunals on Climate Change and its Prevention

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In recent years, carbon dioxide emissions have nearly doubled, sea levels are rising, ice sheets are shrinking and the planet is getting hotter. Whether certain leaders of the world believe in climate change or not, it is something which is undeniably taking place because we can all feel the effects and repercussions of it, be it the shrinking island of Japan or the ever reducing number of animal species. Majority of scientists around the globe have confirmed that human activity is not only an aggravating factor but is also the cause of most of the climate change. In the present times, a situation of urgency has arisen after predictions that the Arctic cover will melt in a few decades. Therefore, it is a vital responsibility for governments as well as the legal systems to ensure prevention and mitigation by all means. 

Unfortunately, in India, environmental laws and rules governing climate change are not only decades old and outdated but they also fail to address the urgency of the situation in which we are today. While there is no scarcity of legislations, ranging from the Environmental (Protection) Act, 1986 to the Water and Air Acts, these rules and regulations majorly fail to be effective. A major reason for their failure is that the boards and authorities established under these acts to work as enforcement agencies lack accountability and implementation. Many a times, giant corporations get away with causing pollution and offences listed in these acts by paying a few fines which are only worth a penny for them. Even though India is a signatory to various environmental resolutions and has also ratified the UN framework convention on Climate Change in 1993 and the Kyoto Protocol in 2002, there has still been very less enforcement considering that it’s a dualist nation. Another major reason is the lack of political will and lack of awareness among the citizens, which in turn fails to create the much needed political pressure. The country’s climate policy is also outdated, as the last one was formulated in 2008, a decade back. The ‘National Action Plan on Climate Change’ which was then formulated has evidently not been successful as most of the goals listed therein have not been achieved, such as the integration of climate laws and reporting of greenhouse gases (GHGs). 

Hence, now the need arises for the courts and tribunals to take all measures for prevention and mitigation, so as to ensure the safety and well-being of citizens. As Justice D.Y. Chandrachud mentioned in his recent speech, there is a need for the courts to devise solutions instead of waiting for the parliament and this is exactly what India needs. It has unquestionably become an issue of fundamental rights of the people and the right to life guaranteed by Article 21 of the constitution, so the tribunals must seek to protect the same. Therefore, in order for the judiciary to eliminate the causes of climate change, there is a requirement of creative interpretation of laws as against a strict and literal interpretation which hinders progress and advancement. Doing this would not only benefit the community but also reiterate the essence and objective behind the legislation. Therefore, there is a dire need to interpret all legislation in an environmentally friendly way while keeping in mind the long-term consequences of such judgments, since it is a common law jurisdiction and precedents also play an important role. 

In order to truly achieve environmental justice, the courts will have to take up an active role in creative interpretation so as to restrain harmful corporate projects and practices and also formulate guidelines through judicial activism. The ‘precautionary’ and ‘polluter pays’ principle along with the ideals of sustainability must always be kept in mind, so as to protect the right to life of future generations as well. It is unfortunate that in the case of Ridhima Pandey v. Union of India [O.A. No. 187/2017], the petition filed in the National Green Tribunal by a nine year old girl alleging inaction on climate change by the government based on the doctrine of public trust on behalf of all children and future generations was recently disposed of as the court believed that “climate change is covered” in existing laws. It must be remembered that based on the doctrine of public trust, the state is the trustee of all natural resources for the benefit of citizens. Furthermore, a severe adoption of absolute and strict liability principles along with correlating the measure of compensation to the size of the enterprise will also have to be adhered to. It is also vital that environmental justice can no longer be limited to environmental cases and tribunals, and must extend to every decision ranging from matters of land like the Aarey forests of Maharashtra to commercial development matters. 

Another aspect which affects interpretation is the polarity between economy and the climate, as unfortunately economic agendas act as powerful hindering forces for environmentally sound decisions. However, it is now high time to think about the future stakeholders considering the fact that a good economy will do no good if most of the population is unable to afford even clean air. 

In conclusion, in order to give way to creative interpretation, there is a need to learn new meanings of old concepts, take up a proactive role with a liberal approach for suo-motu powers and also move towards scientifically driven and sustainable decisions and judgments. If the same does not materialize, then the citizens of this country would not have a future, let alone the future generations to come. 

Opinion, Policy

Future of Religious Rights of Women

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In the present times, there is a lot of controversy with regards to the religious rights of women, with special reference to the Sabarimala temple case. As should happen with every controversy, this issue needs to be talked about and discussed in detail in order to formulate a holistic policy on the same, which is beneficial to every stakeholder. 

In order to hold successful deliberations on the issue of women’s religious rights, there is a need to focus on numerous aspects apart from the right to enter places of worship and entering temples during the period of menstruation. Since India is indeed a country of diverse religions, the rights thereby originating from these religions are also diverse and manifold. A very important area of focus relates to inheritance and succession rights since they are closely intertwined with religion. The nature of religious freedom that women enjoy, not only on paper but also in practice also needs to be considered. This includes the right to follow, convert as well as not to follow a particular religion. Hence, the laws in relation to conversion also need to be referred for this discussion. 

Another very important area that requires focus is exploring women’s right of religion with relation to marriage. While some religious rules prohibit women to practice a different religion than that of the husband, others rules necessitate the conversion of women to the religion of that of the husband in order to hold a successful marriage. This in turn raises a question about the religious identity of a woman in a marriage and the level of independence that she has to choose and practice her choice of customs and celebrations as different from her husband. Interestingly, conversion of a spouse to another religion is also a valid ground for divorce in many cases and what happens is that the woman is left with little or no maintenance just because she chose to follow a different religion or not to practice the religion followed by her husband in the case. Another interesting but disturbing element is that according to certain laws, the religion of a child is always assumed to be of his/her father and not of the mother. Therefore, such aspects are reflective of the patriarchal nature of the institution of religious marriage in India and how it favours the husband over the wife. 

Furthermore, there is also a need to focus on the balance between religious rules as well as decisions taken by religious councils and laws and regulations that are not necessarily backed by religion but are nevertheless good for society and good for the cause of promoting religious rights of women. Hence, this involves the much dreaded question of moving forward and distinct from strict religious interpretations of religious rights for the empowerment and advancement of women.  

In conclusion, in order to materialize the aforementioned discussion, politicians and other organisations need to build a base for tolerance in the nation and they need to figure out how to do that. There is also a need to eliminate the causes and practices which hinder the religious freedom of women in the country, so that we can truly achieve gender equality in the sphere of religion. Also, as it has repeatedly been suggested by courts, tribunals and law commissions along with the international community itself, the nation also needs to work on the integration and promotion of uniformity in religious laws for the benefit of women and children. 

In future, the true ideals of women’s religious rights and freedoms can only be achieved if political parties and leaders come together with other organisations and institutions working for the advancement of women’s rights in order to reach a consensus for the benefit of all women who are the stakeholders in this case.