LET’S INCLUDE THE ‘’MEN’’ IN ‘’WO(MEN)’’!!

-Sukhpreet kaur
The word ‘’EQUALITY’’ comes in handy when the
nation is only developing theoretically but the only
time we will talk about EQALITY is when it is not
provided whether it is for men, women or LGBTQ
communities. Yes! First we fought for female rights
and now we have to do the same for men because
apparently the MEN in the government are the only
protected ones, so We have to ‘ungender’ the laws.
Previously, Indian laws were gender specific because
women and the transgender community suffered
more in addition to their minority statuses yet they
could not seek legal recourse due to the gender
roles of patriarchic system.
Additionally, this ‘pitrasatta’ got heavily influenced
by the British monarchy; as a result, the Indian male
generation was able to continue gender oppression
and inequality more openly. In the said modern time,
almost all humans are equal victims of crime culture,
hence, a study of different aspect showing that
equality is the right of human beings and should not
be limited to one gender.
History of laws for different Communities –For
an insight into what the problem is, we have to go
back to the British era. During the British period, the
main focus was in financial interest and politically
dominating India, therefore, any laws made were not
out of concern for public but to establish power.
The British crown significantly inflicted the male
dominating society, seeing no parallels between
both cultures. The analytical part being, how their
actions caused a negative approach to laws back
then, and how those laws were a basis for modern
day legislatures. Although, it affected the Indian
society as a whole, the period of rule affected
transgender community and women as follows;
The transgender community often known by
the names of shiv shakti, eunuchs, or hijras were
given the benefit over land and taxes and held
respectable status in society but during the British
period their status slowly demolished. These
communities were repulsed from their civil rights. In
the 19th century, sodomy was criminalized by the
British raj as a ‘crime against nature’. Also, the
Criminal Tribes’ Act of 1871 that labeled certain
communities as hereditary criminals included
transgender and gender non-conforming individuals.
Being a third gender is the slightest recognition they
got until modern period.
For the women, acts like Sati Abolition Act 1820,
Widow Remarriage Act 1856, and Abolition of
Devdasi system 1929 proved to be a boon. This does
not mean that there was no discrimination. The
monarchy improvised as well as worsened the
position of women in India. Mainly, the problem was
not the foreign rule because women were denied
their demands when it threatened the patriarchy and
male privileges of families. The women’s movement
was a fight against both, foreign and domestic
injustice. Having women centric laws in male
dominated society may not be a good choice
because who will protect men? It may sound
hilarious but the question is real.
Now, even though we discriminate among genders,
the crime does not. Men are equally prone to crimes
like rape, abduction, sexual harassment, or even
cruelty. The society and laws might be men and
women centric, respectively, for generations but now
is a need for equal protection of every gender. There
is a neccesity to shift from gender biased laws and
provisions to make a bigger impact as a society.
Constitutional essence and case laws –In the
case of people’s union for civil liberties (PUCL)
V. Union of India, the apex court observed;
… That the fundamental rights themselves have no
fixed content, most of them are empty vessels into
which each generation must pour its content in the
light of its experience. The attempt of court should
be to expand the reach and ambit of the
fundamental rights by process of judicial
interpretation. The constitution is kept to be young,
energetic and alive.
Each and every law has to be consistent with the
basic essence of our constitution given in preamble.
Following articles comprising of fundamental rights
provides a look into whether some provisions
preserve the human rights and liberty;
Article 14(right to equality) uses two expressions
namely:-
 Equality before law,
 Equal protection of la
While the first is self-explanatory, the second phrase
implies absence of any special privilege and ensures
equality of treatment to all in equal circumstances.
For equal treatment, legal recognition is important.
National Legal Services Authority v. Union of
India (2014) is a landmark judgment of the Supreme
Court of India, which declared transgender people
the 'third gender', affirmed that the fundamental
rights granted under the Constitution of India will be
equally applicable to them.
Still, only transgender have been recognized until
now but as to develop in real senses, we have to
recognize every gender from the LGBTQ community
but the Supreme Court’s last year judgment on
the same sex marriage between queer people was
seen as a social setback; the court acclaimed that it
can neither strike down nor insert any provisions in
the special marriage act (SMA), 1954. The apex
court said it is up to state legislatures and
parliament to formulate laws on this matter. Not only
this, the LGBTQIA+ community were also denied
rights related to marriage such as inheritance,
adoption, pension etc.
Now Even though three genders are legally
recognized, there is a blank space to be filled i.e. all
three must be included in the new laws namely
Bhartia Nyaya Sanhita(BNS) and Bhartiya Nagrik
Suraksha Sanhita(BNSS).
Article 15 provides that the state shall not
discriminate against any citizens on grounds only of
religion, race, caste, sex, and place of birth or any of
them. So, this implies that explicitly excluding
men and transgender from the Bharatiya
Nyaya Sanhita (BNS) makes it violative of article
15.
The question arises because specific gender
definitions are given in the sanhita as;
 Section 2(19) – MALE means male human being
of any age.
 Section 2(35) – WOMAN means a female human
being of any age.
 Section 2(10) – TRANSGENDER shall have
meaning assigned to it in clause (k) of section 2
 of transgender persons (protection of rights) act,
2019.
Instead, there should be a gender neutral term such
as the use of ‘person’. This suggests that any person
irrespective of their gender shall be protected
otherwise by assuming the gender of victim and the
perpetrator, the law limits its scope.
In the case of Mx. Alia SK v. The State of West
Bengal and ors. (2019), the court held that
transgender persons have the right to seek
admission into any university where both men and
women take admission. Now even though the court
has ruled in favour of transgender persons, at the
ground level its either they don’t know their rights or
they are not provided with adequate legal recourse
to fight for justice and equality.
In the case of Chinmayjee Jena v. State of
Odisha(2020), the Odisha court delivered the first
judicial decision in India that explicitly recognizes
the right of the trans persons to enter into a live in
relationship with the partner of their choice,
regardless of the ‘’gender’’ of the person.
The article 15 also provided for a positive
discrimination under clause (3) as;
‘Nothing in this article shall prevent the state from
making any special provision for women and
children.’ It eliminates the socio-economic
differences that women faced from a long time but
also establishes men and transgender being a
second class citizen.
The atul subhash suicide case sparked this legal
turmoil of gender biased laws when he left behind a
24 page suicide note and a 81 minute video blaming
his marriage and divorce proceedings for his actions.
Cruelty in a civil union should be punishable
regardless of who is committing the offence.
Doctrine of severability (Article 13) – This
doctrine means that if an offending provision can be
separated from that which is constitutional then only
that part shall be declared void and not the entire
statute. In the Navtej Singh Johar v. Union of
India case, this doctrine held the section to be
invalid to the extent it criminalizes the consensual
homosexual acts done in private.
The section 377 IPC is not included in the new
statute. With the implementation of BNS, there is no
section that would deal with the rape of men
and transgender, therefore, significantly
restricting the legal rights of both compared to
women.
Not just this, there are some other laws being
gender centric and does not identify other gender
beside women as victims, namely;
 Sexual harassment at the workplace – under
‘the sexual harassment of women at
workplace(prevention, prohibition and redressal)
act, 2013, the workplace harassment is a
serious issue but the way it is perceived
generally reflects a gender biased approach.
While the law has made quite the efforts to
address the issue, it largely focuses on women
as victims. It stems from historical inequality
where women have been seen more vulnerable
to harassment. However this excludes males and
those from LGBT communities who also faces
harassment but lack legal recourse. The POSH
act solely protects women from another woman,
man or third gender at workplace. The act will
only be applicable in case of transgender who
identifies as a woman.
We can perceive that men are never assaulted or
are passed with lewd jokes and trans person
have never been harassed at the workplace. A
study by NHRC on the rights of transgender
reveals that around 92% of transgender persons
are denied the right to participate in any kind of
economic activity and even the qualified ones
are denied jobs because of their sexuality.
 Rape and sexual assault – while the society
has degraded morally, no offence is limited to a
particular gender. The Bhartiya Nyaya Sanhita,
defines the rape in such a way that it only
 recognizes women as victims. The chapter V
deals in offences only against women and child.
Now, it is often debated whether women can
commit rape or sexual assault but it is not
about the act being done rather
acknowledging every identity under law.
The sexual violence of men is prevalent likely as
that of women and still considered a taboo and
damage to reputation. Irony being, the physical
and mental injuries endured by women are now
faced by men and even the advices are same –
you should not tell anyone!
The chapter of BNS deals with such related
offences like voyeurism, stalking, word,
gesture or act intending to insult the
modesty of women, or assault or use of
criminal force against women are gender
biased. This is, maybe because happening of
these events with men is not normal but other
community who suffers exactly like women, the
community who is prone to these offences!
 Concept of consent – The age of consent is the
age where a person is considered legally
competent to consent to sexual acts. Consensual
sex is limited to the scope until false promises
are made either to marry or have a long term
relationship. Under BNS, the concept of consent
only applies when the victim is a woman.
However;
 1. If similar deceit happens with men, this
concept does not hold much legal value.
2. Also, there is no accountability for women
who make false promises and manipulate them
into relationships.
Another rising issue over this matter would be
the cases of reverse dowry where women
make false promises of providing her partner
with spouse visa and the groom spends his
money for her education, visa and flight
arrangements only to be met with a deceit
later on.
 Provisions of maintenance and alimony–
under the Bhartiya Nagrik Suraksha Sanhita, the
provisions of maintenance in section 144
consider it a man’s duty to provide maintenance
to his wife, children and parents. Again the
legislation was implemented when most of wives
and parents were dependent on their husband
and son and the head of the family (man) was
the sole bread earner. After almost 60 years, are
we still rowing the same boat?
India has developed economically,
educationally, politically, socially and in
employment sectors but we are considering the
status of women as dependents after centuries
of progress.
In the case of Neeraj Aggarwal v. Veeka
Aggarwal, the wife sought maintenance on the
 grounds that she was unable to maintain herself
whereas it was later discovered that she had a
degree in engineering and was pursuing an MBA
hence indicating her capacity to earn.
It shall also be the duty of wife to maintain her
parents or in laws in case her husband cannot.

Gurbinder singh v. Manjit kaur,

In this case, while the divorce and other
proceedings were going on, the wife applied for
maintenance but did not disclose the fact that
she was a teacher in a school in jalandhar and
she filed an affidavit in high court to harass her
husband.
The court found out that she applied for
maintenance only to harass her husband which
clearly violated the undertaking between them.
A little factual knowledge here, even though we
suggests a non sexist approach, we are not
including the members of LGBTQ community and
we have given equality to trans person but on
the ground level, they still faces the
discrimination on a regular basis. This implies
not a lack of legal provisions rather a lack of
social awareness.
 Cruelty by husband or relatives – the term
cruelty for human beings can never be defined
precisely, it may consist both mental and
physical torture. Under the section 85 of BNS, it
is an offence if the husband or relatives of the
husband of woman subject her to cruelty but if
same level of mental or physical cruelty is done
to other, it may not seem to be taking a greater
impact.
A case of agra, where a woman enraged after
her husband took away her phone, sedated him
at night and tied him to bed and proceeds to
thrash him and give electric shock.

Conclusion
The time has come when we leave the
imperialistic laws to the period they beonged.
While at the end, we may blame the
government, the parliament or the laws of our
nation, we know where the actual problem lies.
So, unless the people recognize each other as
human beings for the least, our fight will
continue for ‘EQUALITY’.