Gender Biasedness of The Indian Penal Code

India is the largest democratic country with the longest written constitution in the world, Therefore, people’s adherence to the constitutional principles such as Rule of Law, Social justice, Religious equality, Individual freedom, etc. becomes essential to the utmost. The Judiciary of India emphasizes Constitutional morality which they regard as one of the core principles of a democratic country like India. We all know that human beings though are gifted with various abilities like the capacity to speak, think, etc. but still they are not less than furious wild animals due to which they don’t obey things until there is a binding nature to it. Hence, in order to secure peace in the society and to prescribe certain punishments if people disobey the codified laws, the Indian Penal Code was drafted in 1860. The laws prescribed in the Indian Penal Code are free from any gender favoritism, i.e. no matter whatever gender an offender is, he/she will remain an offender only and will get punishment accordingly. 

Crime against women

We have been living in a world which was and is still to a certain extent patriarchal based (though now circumstance has changed to a great extent most of the things are only confined to the town areas). Women’s status in Indian society has been through many ups and down in ancient to the modern era. In ancient times Indian women held a high place of respect in the society as mentioned in various religious sources like Rig-Veda and other sculptures.[1] Volumes can be written on the status of the women and their heroic deeds from the Vedic period to modern times. But later on, because of social, political, and economic alterations, women lost their status and were subjected to various kinds of torture and exploitation. Many evil customs, cultures, and traditions stepped in the country, which enslaved the women and tied them into the boundaries of the house.[2] Women have been treated as ‘clay’, a lifeless material, being molded in any way which the male version of the society wanted to. They were treated as the machine to reproduce and were tied within the boundaries of household works. But after years and years of struggle women finally got a respectable position in society. Over the past 60-70 years, we have witnessed a significant change in woman’s desire. They wished for individualism and less involvement in household management and child care, and are increasingly expanding their involvement and contribution in other areas of the society. But keeping everything apart we cannot deny the fact that the chapter of crime against women is still left in the middle of the ocean. It has been seen through the official statistics that there is a decline in sex-ratio, health status, literacy rate, work participation rate, life expectancy rate, and political participation among women. On the other hand, the country has witnessed an increment in the spread of social evils like dowry deaths, child marriage, domestic violence, rape, forced prostitution and pornography, sexual harassment, exploitation of women workers, forced slavery, etc.[3]

Constitutional and legal provision for women

In order to protect women from the injustice which they have been facing in the form of deprivation from many opportunities; the principle of gender equality has been enshrined in the Indian Constitution in its Preamble, Fundamental Duties, and Directive Principles. The Constitution along with granting equality to women  empowers the State to adopt measures of positive discrimination in favour of women to protect them from socio-economic and political disadvantages like participation in political activities, educational criteria, and many other stumbling blocks. India has also sanctioned various international conventions and human rights commissions aiming to secure equal rights of women. Key among them is the ratification of the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) in 1993.[4] Various Constitutional provisions have been made to protect the woman from further exploitation.

Constitutional Provisions for women are as under:

• Article 14, grants equal rights, and protection of laws to every man and woman in the political, economic, and social spheres.
• Article 15, prohibits discrimination against any citizen of India on grounds of religion, race, caste, sex, or place of birth.
• Article 16, provides for equality of opportunities in the matters relating to employment or appointment to any office under the state.
•  Article 39(a)(d), talks about state policies to maintain equality for both men and women. It aims to equal the right of livelihood and equal pay for equal work for both men and women. 
• Article 42, directs the State to make provisions aiming at supremacy for ensuring just and humane conditions of work and maternity relief.

Legal Provisions for women are as under:

• Factories Act 1948: The act states that a woman can work in any factory except between the hours of 6 A.M. and 7 P.M.
•  Maternity Benefit Act 1961: This act protects the employment of women during the time of her maternity where the pregnant woman is entitled 12 weeks of maternity leave with full wages.
• The Dowry Prohibition Act, 1961: The provisions of this Act make the demand of dowry either before, during, or after the marriage an offense.
• The Medical Termination of Pregnancy Act of 1971: The Act safeguards women from forceful abortion and also makes the examination of the gender of a baby before birth illegal.
• The National Commission for Women Act, 1990: The Commission was set up in January 1992 to review the Constitutional and legal safeguards for women.

 Gender Biasedness of the Indian Penal Code

“It is better that ten guilty persons escape than one innocent suffer”- Sir William Blackstone [5]. The entire foundation of criminal law rests on this quote. The rational thinking behind this principle is that the suffering of an innocent person breaks the faith of humanity in the rule of law. Therefore, it is made sure while giving punishment that no innocent is grabbed by it.

We know that women living in a society are considered to be vulnerable i.e. more prone to exploitation, therefore in order to protect them, some special laws have been made especially some of the laws prescribed in the Indian Penal Code,1860, which are more inclined towards the women of the society. But we also cannot ignore the fact that the time when Indian Penal code was made, the society was largely patriarchal and women were considered the weaker section of the society, due to which special laws were codified to protect them and also to provide them with equal rights. Now, the time has changed (though not completely) and India has a constitution that grants equal protection and rights to everyone irrespective of their gender. However, certain provisions of the Indian Penal Code are extremely one-sided and have not adapted alterations with the changing circumstances of society. The concept of legal equality denotes that every citizen should be subjected to the same law and must be penalised equally. The laws are codified with an aim to be gender-neutral but after deeper analysis, it is being found that the rules are biased towards the female entity of the society.  The Indian Penal code, in its basic form, is the main criminal code of India, which lists all the cases and punishments that an offender of Indian origin or an Indian citizen is liable to be charged with according to the crime committed by them.

Therefore, the Indian Penal Code is established keeping in view that the law should never distinguish between criminals, and every person who has committed a crime is liable to be punished under the code in the matter irrespective of their gender. But is this really applied in practical life? The answer is no because nowadays it has become very common that women are more into false utilization of the laws made for their protection. Therefore, the prevailing of a common mindset that “all violence is male generated”, does not only create a gender division in the society but also provides a shield to the crimes perpetrated by women [6]. Here, are some provisions of the Indian Penal Code which are tilted towards the women and don’t recognise the side of men at all-

• If the death of the woman is caused by burns or bodily injury within 7 years of marriage than the husband is accused. ( section 304 B) 

This has been stated in Section 304 B of the Indian Penal Code. This section deals with the death of a woman within 7 years of her marriage due to burns or bodily injury which is resulted from  cruelty or harassment committed by her husband or any relative of her husband for, or in connection, with any demand for dowry, such death is called dowry death. The punishment prescribed for the offence is life imprisonment of 7 years which may extend up to life imprisonment. This section in general sees husbands or in-laws as the offenders because this section is made to protect the woman from such torture for dowry. But many innocent people especially the men get prosecuted under this section. In most cases, the police department fails to investigate or doesn’t investigate at all believing in whatever the women confront. Hence, this provision strictly goes in favour of women, not disputing the fact that even men need protection and can be proved innocent too. 

• If a woman is treated with physical or mental cruelty by her husband and his family, she can complain against them and throw them behind bars. (Section 498A)

It is true that women are highly subjected to physical and mental cruelty by their husband and their in-laws, due to which this section was made, thus brought into practice for the protection of women from domestic violence, but we can’t ignore the fact that some women are falsely accusing their in-laws and are filing false cases against them for obtaining undue benefit. Over the past couple of years, there have been several false cases filed under section 498A and several innocent people have been tangled into legal proceedings that have led to a waste of time, resources, and efforts for many people. Women should understand that this provision must be used as a “shield” and not as an “assassin’s weapon” as observed by the Apex court in Sushil Kumar Sharma v. Union of India where the Supreme Court observed that complaints under section 498A of the Indian Penal Code (IPC) were being filed on the basis of personal vendetta. The Supreme Court of India has given a second name to Section 498A which is “Legal Terrorism” [7]. In most cases of misuse, it is acknowledged that the misuse of the very law is done by educated women for their selfish needs. They put false accusations on their husband and in-laws for absolutely trivial reasons reason as getting rid of them or simply causing harm or hurting the family for their own personal reasons. 

• If a man has sex with or without the consent of a girl under eighteen years of age, then it amounts to rape. (Section 375)

Section 375 starts with a line that completely indicates that rape can only be committed by a man. The section is completely silent on rapes or sexual assaults committed by a woman on man or man on a man. According to the sixth situation listed in Section 375 of the Indian Penal Code, if a boy and a girl of 16-year-old  have consensual sex then also it amounts to the rape of the girl. This section doesn’t even bother if there was the consent of the girl because it reads as ‘with or without the consent of a girl’, it only takes into account that the girl is under eighteen years of age and she had sex no matter with the same age person or elder than her. This is because it is assumed that the consent is taken under fraud because women are held to be vulnerable. But if a boy under eighteen years of age is molested by an elderly woman or man than the section remains quiet. In the case, Independent Thought vs Union of India, the Supreme Court of India in its decision narrowed the scope of the ‘marital rape exemption’ and criminalised the sexual intercourse with a married minor girl i.e. wife below 18 years of age. But, what if a man is being molested? Why does the law doesn’t punish the woman?

 We can’t at all ignore the fact that in the present time false rape allegations are common and women take undue advantage of the women-centric laws that are made to protect them. It has to be understood that even the man can be victims and can be unnecessarily harassed physically, mentally, and emotionally for personal benefit of the woman. 

• If a man assaults or uses criminal force with an intent to outrage the modesty of a woman it is punishable (Section 354)

Section 354 punishes a man for assaulting or using criminal force with the intent to outrage a woman’s modesty. But there is no such law made to protect the modesty of a man. There are a number of cases where women are found to bully men but escape from being accused because the law of the country doesn’t have any such law which would protect men from such crimes. The situation has become so adverse that if a man accidentally touches a woman in a crowded bus, and the woman protest even slightly, the man will be prosecuted without even being given a chance to speak for himself and would be humiliated publically. 

• If a man is found to be sexually harassing a woman than he is punished in accordance with the following section. ( Section 354A)

According to Section 354 A of the Indian Penal Code, a man prosecuted for sexually harassing a woman shall be punished with rigorous imprisonment of 3 years or fine or both or imprisonment of 1 year or fine or both, but there is no such punishment prescribed for women. 

Indian society has been such where women have been highly sexually harassed. But as the society is growing the human genome has become much more heinous; women have been protected with many laws but they have started false utilization of the same. Moreover, nowadays, men are also getting sexually harassed but it is very shameful that the laws don’t recognise the same. The concept is still confined to women and the male victims lack justice. This section is also more centric towards the women because women have been and are still facing sexual harassment issues in their workplaces where sometimes they are being asked to have physical contact or else they would be thrown out of the job but does this only happen with women? No, we often come across that a female boss harasses her male employee and that’s a fact so this law doesn’t protect the right of the men when they also need such laws in the present days.

• If a man follows a woman or tries to contact the woman despite the woman being disinterest then the man can be punished under this section.( section 354D)

Section 354D, IPC talks about the term ‘stalking’ which generally means the act of following or trying to contact despite the disinterest of women. The section punishes the offender with imprisonment of 3 years and with fine or imprisonment of 5 years with fine. 

Yes, it’s true that women are more prone to exploitation but in the present scenario such laws are even misused for a personal grudge. Moreover, it is nowhere written that a girl cannot stalk and disturb a boy so things need to be considered and laws should be altered accordingly. 

Cases of False accusations by women against men

There are a number of cases where false accusations made by women has ruined the life of many men. Mentioned below are some of them:- 

Recently there was a case (see here) filed against a 75-year-old man for raping a woman highly below her age, the 75-year-old man who had already lost his wife and is so old that he can barely walk. The man even suffered imprisonment of 6 months. Later, he got justice when the woman confessed that she did that for money and property. Although he got justice he suffered at the hands of the society for an act which he never committed [8].

Revision of Women’s Legal Age for Marriage

BBC News published an article (see here) about a real estate agent named Gupta who was 44 years old and was accused of rape by a woman who he went out to show some property turned out that women were coerced by an employee of the real estate agent who he caught embezzling money. Although he got out of the case after being proven innocent it took 8 months. And during those eight months, Gupta lost every shred of dignity he had in the society; his family suffered too.

Therefore, in this way, women take undue advantage of the laws made for their protection. They prosecute the man for the offense which they haven’t committed. We cannot ignore the fact that even if our Justice system proves the accused person innocent but the media trial already forms an opinion in the society which ruins their dignity in the society. There are numerous cases where the man has faced a lot of humiliation for someone else’s personal benefit or grudge.

Steps taken to prevent men from false accusation

Until July 2014, Section 498a of the Indian Penal Code was such that it allowed the automatic arrest of the persons mentioned in the complaint i.e. without a warrant or without any investigation.[9] But the situation changed when on 2 July 2014, the Supreme Court of India directed the police to use Section 41 of the Code of Criminal Procedure, 1973, which contains a checklist, to decide if an arrest is necessary. The Court also stated that it is compulsory in all arrests for the magistrate to check if further detention is necessary. [10]

In August 2010, the Supreme Court keeping in view the rising numbers of false or exaggerated complaints against husbands and their relatives by women directed the government to amend sec 498a. It further added that such complaints affect the dignity of the husband and his relatives in society. [11]

It is seen that 4.5%  of the cases are filed are under Section 498a, which is the highest barring theft and hurt [12]. Out of which 9% cases are found to be false or under the wrong law. Of the cases which would go for trial only 15% result in a conviction. In July 2014, 3,72,706 cases under Section 498a were pending in Indian courts [13]. It is usually  pointed out that several of those who are arrested under this law are women themselves, i.e., female relatives of husbands [14].   

Observing the rampant increase of false cases, it was reported that the Government of India was planning to amend Section 498A. It was decided that sec 498a would be made compoundable, which would allow the parties to settle if the court recommended it rather than the immediate arrest of the persons mentioned in the complaint. Further, it was added that the fine for filing a false case would be increased from ₹1,000 to ₹15,000 [15].

In order to save a man from further harassment the following verdicts were given:-

In September 2008, the Delhi High Court in order to protect the man passed a verdict where it said that a woman earning sufficient income is not entitled to maintenance from her divorced husband. The verdict came after a man challenged a family court’s decision to grant ₹7,500 monthly alimony to his wife. The man had pointed out that his wife was earning ₹80,000 for a month and had no other responsibilities [16].

Similarly in another case, the Delhi High Court released a verdict that a man cannot be forced to pay alimony if he is unemployed and also stated that wife being equally qualified to her husband, and working in a multi-national company, cannot claim alimony [17]. Hence, these are some of the steps taken to prevent men from false accusations and harassments which they go throw for the laws being biased against men. But these are not enough the laws need to be amended accordingly, though women need more protection than a man that doesn’t mean that the man will be harassed in howsoever, a proper inquiry should be adopted which really lacks in our present society.

Conclusion

The Indian Penal Code gives the substantive aspects that would guide the criminal law in India. It provides a general penal code for India. However, when the code was made the society was highly patriarchal in nature due to which various laws in the IPC have been made in favor of women. Further amendments have also been made but we come across bias in the code, where the provisions are gender-specific, and thus these provisions have failed to adapt and function at par with how the circumstances of the society have changed.

We cannot ignore the fact that the female section of the society has suffered a lot due to which special laws were made to provide the wronged woman with justice. The laws are made such that no woman is denied of her rights, but at the same time, one should not turn a blind eye to the abundant misuse of sexual harassment laws. It is very important that society maintains the right balance. Such a mindset that women are always right and men are always wrong, is not right and must be changed. Thus, its high time that the Judiciary look into the following scenario and order proper investigation before believing whatever woman prosecute the man for. We cannot deny that women are different from men and are more subjected to crime, but to assume that women are the victims always and men, the perpetrators are something which should be altered. The idea that men could be victims of domestic violence, sexual harassment, and molestation is so unthinkable that many men refuse to report the violence [18]. Therefore, the Judiciary and the policymakers should make sure that there shouldn’t be any injustice. They have to ensure that the victims are given justice, the innocent people are not harassed and those who file false affidavit are penalised.

ENDNOTES

1. Role of women in Ancient India by Naresh Rout
2. Violence and Protective Measures for Women Development and Empowerment by Aruna Goel, New Delhi, Deep & Deep Publications, 2004, pp. 3-4
3. Violence against Women and Children-Issues and Concerns, By Awadhesh Kumar Singh And Jayanta Choudhury, New Delhi, Serials Publications, 2012, p.1
4. India, Ministry of Statistics and programme Implementation, Women and Men in India 2012, 14th Issue, p. xiii
5. English Jurist William Blackstone expressed the maxim in his seminal work “Commentaries on the Laws of England (1765-1769). The ratio of 10:1 is also known as the Blackstone’s ratio in criminal law.
6. http://www.legalservicesindia.com/article/2011/Gender-neutral-Indian-Penal-Code.html
7. https://bharatchugh-in.cdn.ampproject.org/v/s/bharatchugh.in/2012/08/05/misuse-of-498a-false-498a-legal-terrorism-says-supreme-court-in-sushil kumar/amp/amp_js_v=a2&amp_gsa=1&usqp=mq331AQFKAGwASA%3D#aoh=15943868751096&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Fbharatchugh.in%2F2012%2F08%2F05%2Fmisuse-of-498a-false-498a-legal-terrorism-says-supreme-court-in-sushil-kumar%2F
8.  J Indian Acad Forensic Med. July-September 2013, Vol. 35, No. 3
9. "Misuse forces a review of dowry law". Hindustan Times. 28 February 2011. Archived from the original on 7 April 2014. Retrieved 6 April 2014.
10. "No arrests under anti-dowry law without magistrate's nod: SC". The Times of India. 3 July 2013. Retrieved 23 July 2014.
11. "Amend dowry law to stop its misuse, SC tells govt". 17 August 2010. Retrieved 6 April 2014.
12. "No arrests under anti-dowry law without magistrate's nod: SC". The Times of India. 3 July 2013. Retrieved 23 July 2014
13. Arnesh Kumar v. State of Bihar (Supreme Court of India 2014) ("As many as 3,72,706 pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.").
14.  "Pro-women laws being misused". The Times of India. 26 June 2008. Retrieved 6 April 2014.
15.  "10% of dowry cases false, government plans changes in law". The Times of India. 22 March 2015. Retrieved 6 April 2015
16.  "'No alimony for wife earning well'". DNA India. 22 September 2008. Retrieved 1 December 2014.
17.  "Unemployed man can't be forced to pay alimony: HC". The Indian Express. 27 August 2010. Retrieved 1 December 2014
18.  https://legaldesire.com/mens-rights-in-india/ (last visited on 09/07/2020)

Ananya Saha | Indian Institute of Legal Studies