Gender Neutrality and Legal Complexities in India

genderJidan Kongari,

(Jurisprudential Study of Gender Neutrality and Legal Complexities in India- Special reference to rape laws)

 

INTRODUCTION:

Gender neutrality is an idea or a movement which encourages avoiding negative differentiation among people on the basis of people’s sex or gender with regard to policies, language and other social roles. It basically aimed to bring parity and in society by abolishing the thought of superiority of one gender upon another ie equal treatment of men and women in various aspects. Right to have an equal treatment is guaranteed to every citizen of the country irrespective of sex of a person.1 At the international level, both men and women are equal in terms of rights and dignity without any discrimination.2 Gender is a social, cultural and political construct. It gives a range of characteristics which lead to create a difference between masculinity and femininity in various fields, it may be in politics, workplace, economy, domestic level etc. Gender also has it’s legal significance as it is mentioned in governmental and official documents which is used to avail certain rights and liabilities on this basis. Which is also different for men and women. Like different tax slabs, pension status. This gender factor also affects the social status and role of a person like marriage, occupation, social behaviors etc.

Need of gender Neutral laws: It is the need of hour that laws be more gender neutral. To bring equality and to protect the rights of the people of third sex gender and homosexuals neutral laws are imperative. These days a regular conflict can be easily seen in the mode of the men’s rights movement in India.3 It is the outcome of high rate of manipulation and exploitation of female oriented laws. These incidents are clear evident for the conflict theory of sociology and of Karl Marx. It is an established fact that criminal justice system is suffering from the misuse of pro feminist laws like domestic violence law 498 A, laws for prevention sexual harassment at workplace and male rape laws. Like USA, UK and European Union States India also needs more gender neutral anti-harassment prevention laws.

There is a huge difference between the rate of rape reported and the conviction rate. Only the man is prosecuted for adultery.4 If a man has sex at the promise of marriage and doesn’t marry, it amounts to rape.5 If a man under 16 years of age has consensual sex with a girl of his age, will be a rapist but it is not so in case of women.6 Only a wife can claim alimony and maintenance.7 In case of death due to burns and bodily injury within seven years of marriage the husband and his relatives will be held liable for the death.8 During the Indian general election, 2014, Men-fiesta was released which dealt with the issues of men and addressable issues by the Gov with regard to men’s right. The other demands raised were gender neutral laws, rehabilitation of men who were acquitted, speedy trials of the accused languishing in custody, and equal rights in child custody. Due to this unjust gender divide the various factors of men’s exploitation specially left unrecognized, specially in rape and sexual abuse incidents.

Historical Background of Female Oriented laws:

Women are considered as the marginalized section of the society. They are Oppression due to preferential socio-cultural construct of gender. Subjection of women is a process by which the social hierarchy of power relationships is maintained and nurtured in a gendered society. In the Patriarchal dominion society of India women were given inferior status in all the aspects of private and social life. According to conservatives the primary function of a woman was procreation of offspring so the marriage was prevalent at the attainment of puberty. There was no distinction between girlhood and womanhood. The components of patriarchy corresponding to ideology and institutional practices were as follows (i) The most important goal of life of woman is to act as vehicle for procreation of sons (ii) The Samscaras (religious sacraments) lead to spiritual excellence but woman is entitled to only one of them, ie., marriage. (iii) Women could be owners of property but they could not dispose it of not even the ‘stridhan’. Whereas man has full property rights over house, land, livestock, sons, wives and maids. Thus, she was deprived of participation in economic process (iv) Woman was also excluded from public life (v) Man is the insider in kinship relation and woman is the outsider having loyalty only to her husband. So because of these kind of social inequality feminists took the responsibility ensure the equal rights and protection from the exploitation. So many strict favoring laws are framed for this purpose which were influenced by the huge feminists movements in the Country.

Position of Rape Laws under IPC:

Section 375 of The Indian Penal Code, 18609, provides the definition for the Rape. Through the plain reading of the provision it is quite clear that the statue only deals with the sexual offence and rape against females. The anti-rape campaign has been the central pivot around which the Indian women’s movement has revolved since the 1980s. Its significance lies not just in focusing upon sexual violence but also in addressing theories of dominance and subordination and construction of gender within wider social parameters.

A range of sexual violence done with small girls by inserting objects like bottles, sticks and iron rods into their tender and as yet not fully formed vaginas, causing multiple injuries and risk to life, got swept away under the nomenclature of ‘violating modesty’ punishable with a maximum of two years of punishment. The legal explanation was that the male sexual organ was not involved within the definition. However provisions for sexual assaults may cover thing upto minimal extent but the offence could not be brought within the four corners of the offence of rape.

Abuse of male children in children’s home and reception centers, since these offences could not be made culpable under the conventional construction of peno-vaginal violations, an archaic law formulated to regulate the moral behavior by penalizing unconventional sexual acts under the title unnatural offences under Section 377of Indian Penal Code, 186010.

Status of Male Victims in India:

Conditions in Jail:

Sodomy and rapes in Indian jails has been unaddressed since long time. Even most rights sensitive and well-equipped jails are not freed from this problem. It has become a part of prison behavior. particularly when so many criminals lives together in the same place fighting for supremacy, space, sex, food, entitlements and even mere survival the chances increases. As per the 75 percent of the inmate contented that homosexual behaviors are very common among11.

“When a young boy enters, the prisoners have been known to have bid a price for the boy. The price offered is in terms of ‘bidis’, soap or charas. Often prisoners have been divided into camps and the groups have fought each other on the issue of who shall have the new entrant.”12

Around 6-8 per cent of the inmates in Tihar are HIV positive. While the national average is below 1 percent. If 74.9 percent of the inmates are under-trials, it is highly probable that majority of the people with HIV in jails are also under-trails.

Prostitution and sex tourism of Boys in India:

In various studies it was found that prostitution of male children is rampant in major pilgrimage centers of India – Tirupati (Andhra Pradesh), Puri (Orissa) and Guruvayoor (Kerala) etc. Further due to development of tourism without protective measures leads to sexual exploitation of children, in the form of child abuse, child trafficking, child prostitution, child pornography, child sex tourism and child labour. There is a huge rise in the demand of male children for the above mentioned purposes. They are exploited by domestic and foreign tourists and residents as well. Due to extreme poverty and less livelihood resources they are forced to the prostitution. Due to absence of proper legislation on male rape laws and less risk factor in comparison to the involvement of girls into it the demand is high. As social stigma and fear of pregnancy is less it is easily carried out.13

New Incidents of Rape: Gay Rape in India

As homosexuality in criminalized in India, LGBT and transgender communities are suffering by the insecurity as harassed by the authorities. These people are sexually minorities in India. There is lacking of social acceptance due to the sexual orientation of them. These rape cases are rarely reported due to social stigma. The reason for unreported cases is provision of Section 377. It is a fact irrespective of the social acceptance that the sexual abuse and rape cases against these people are increasing day by day. In absence of proper legislation the danger Of HIV/AIDS is increasing which cannot be prevented by the existing provision of section 377 of IPC.

Why Gender Neutral Rape Laws are Needed:

Males are always considered as the perpetrators as the system has no provision for men to seek legal recourse if they are raped. It is a general presumption that they never be the victims. It is the time to admit the fact that males can be raped. Realization is required that “rape victim” is not a synonym for female. The objective of the penal provisions is to book the wrongdoer and provide justice to the Victims even though they are less in numbers. The bases of provisions in penal codes are not statistical. If the crime exists, there has to be a law for it. Woman can be a potential rapist whether it is a male or a female. All humans are capable to commit barbaric heinous crimes. Human psychology is a strange thing.

In World Health Organization’s 2011 World Report On Violence Health in the chapter titled “Sexual Violence” defines rape as, “physically forced or otherwise coerced penetration even if slight of the vulva or anus, using a penis, other body parts or an object. There could be many effect of the rape upon the male victim which may include mental trauma, physical trauma, Identity crisis etc. Rape has been gendered for too long. Since very long time there was an unjust silence with regard to male rape or sexually abused population. Rape is not solely dominion over women. Most of the male rape victims lack the resources to file a case. As a society, one rarely thinks of male victim rape.

According to the American Law Institute, rape is likely the most underreported crime of violence.14 There are definitional hurdles as well. For example, some jurisdictions continue to define rape in gender-specific terms, specifying a female victim or vaginal penetration. The Uniform Crime Reporting Program also defines rape as requiring a female victim.15

Attempts For Bring Gender Neutrality In Rape laws:

Need was felt to bring a new definition of sexual offences to deliver justice to the vulnerable segments of the society. In 1993, the National Commission for Women responded to this felt need through a bill titled, ‘Sexual Violence Against Women and Children Bill’. The bill advocated deletion of Sections 354 (violating modesty), 375 (rape), 376 (punishment for rape) and 377 (unnatural offences) of the Indian Penal Code (IPC) and brought them under the broad banner of ‘sexual assault. The bill seemed to be introducing two important legal principles: (1) Repeal of S 377, which dealt with cases of ‘unnatural sex’, and for the first time, provided legitimacy to same sex relationships between consenting adults. An attempt was there for the process of redefining sexual assault. While this was a positive move in redefining sexual norms of a predominantly heterosexual society, the gay rights support groups, whose concern this provision seemed to articulate, were excluded from the debate. (2) Through the usage of the term ‘person an element of gender neutrality seem to have cropped in, specifically to include the violation of male children.

The latest example is The Protection of Children from Sexual Offences Act of 2012. The law prepared by the ministry of women and child development considered the possibility of the child victim being either a girl or a boy. The criminal law (amendment) Bill, 2012, defying the gender stereotypes associated with rape, was in keeping with a report from the Law Commission in 2000. In a departure from the definition of rape in the Indian Penal Code enacted in 1860, the Law Commission replaced most references to “man” (the offender) or “woman” (the victim) with “person”, who is either the offender or the victim, depending on the context. In fact, it went to the extent of bringing oral sex committed by either gender under the ambit of sexual assault. However, in 2013, pressure has been made by women activists, the government decided to restore the term “rape” in criminal law that states only men can be booked for committing the offence against women. The spirit of gender neutrality also did not extend to another far reaching legislation. As the name suggests, The Sexual Harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act 2013 is based on the premise that only female employees need to be safeguarded. The women and child development ministry, which had broken the gender mold in the law to sexual offences against children, adopted a conservative approach when it came to the issue of sexual harassment. The Act also overlooks the possibility of a male employee being sexually harassed by another male employee.

The issue of homosexuality had reached the public domain, when prevention of the spread of AIDS became a concern of public health and homosexual men and prostitutes were marked as ‘high risk’ groups needing interventions to spread the message of safe sex among them. The groups working with sexual minorities also started questioning their marginalized existence, lack of public space and visibility and social stigma enforced through the application of social norms.

Jurisprudence and Gender Neutrality:

The jurisprudence consists of scientific and psychological investigation of the social phenomenon of law and justice generally. Law is a social phenomenon and it is related with the justice. Law is the part of the society whether primitive or modern. Law both shapes and shaped by the society. Law puts psychological impact upon the act and thinking of the population living in the society. Law lays down the rules of conduct via its normative approach. As per the present context of gender neutrality there is a need to protect the rights and justice of the male victim of the sexual harassment and rape via effective rape laws with penal provisions. Under existing Indian legal system the condition of male rape law is quite problematic in nature. Criminal law even refuses to recognize it even though equal harassment suffered by the victim. Awareness and sensitivity in the society is important to create a collective sense of respect among the two sexes.

Law may differ from individual morals as in the present case the formation of gender neutral rape laws are aggressively opposed by the feminist activists in the country. Feminist movements support the more female favour law in the name of women empowerment. As this section is considered as oppressed and exploited one. So here is a need to rise from the point of traditional moral and equality policies of feminists. The one of the object of law is to bring parity in the society irrespective of the individual sense of morality. In the words of British legal theorist Jhon Austin, “Law is the command of sovereign”. According to Austin’s legal positivism, law is a social fact and reflects relations of power and obedience. This two-fold view, that (1) law and morality are separate and (2) that all human-made laws can be traced back to human lawmakers. According to HLA Hart, law comprises primary rules of obligation. Law itself holds the element of obedience by the people as backed up by the credible threats of punishment or other adverse consequences like sanctions in the course of noncompliance.

It plays the pivotal role in changing the mindset and social construct. The idea to legislate male rape laws is a new on across the world. It is the demand of the era not to restrict the concept of rape victim upto the female population. Sexual assault and can be done of a female as well as male as well. Studies conducted mostly in developed countries indicate that 5-10% of men report a history of childhood sexual abuse, 3.6% in Namibia and 13.4% in the United Republic of Tanzania to 20% in Peru. The evidence available suggests that males may be even less likely than female victims to report an assault to the authorities16.

Theory of Scandinavian realism law changes the behavior of the people. Scandinavians tried to explain the law scientifically, free from metaphysical element embedded in the traditional definitions. Via scientific approach it was tried to find out the psychological effects caused by the ritualistic modes of law making by Parliament or decisions of Courts. According to Hagerstrom “A civilized life is not possible without law. Further he emphasized upon the nature of the law, capable to guide the behavior of the people. There must be causal connection between the law and the problem existing in reality. In the present matter there is a need to bring changes in the existing of rape and sexual assault laws of the Country. Out of 96 countries studied, 63 have rape or sexual assault laws written in gender-neutral language, 27 have rape laws that are completely gender-specific. (i.e., the perpetrator defined as male and the victim as female) and 6 had partly gender-neutral laws (the perpetrator defined as male and the victim can be male or female).

Conclusion:

Law is not a dry subject, it’s not static17. Law is dynamic in the sense that it is subjected to the constant change, depending upon the variation in society such as new needs, different morals and obsolete principles. It is the duty of the state to make, recognize and enforce the law to bring effective legal system. So that citizens can have confidence upon the rules that the courts or other state officials will recognize and enforce. Law in inseparable part of society and society is complex dynamic and emergent order. For the peaceful cohabitation the observation of common rules for conduct are necessary. Set of laws gives the required structure of the society. The legal philosophers like Jhon Austin and Geremy Benthem had separated the law on the basis of “what law is and what law ought to be”. In the present context the rape laws are there which are extremely favouring women in all sense of sexual abuse and rape cases but in reality conditions also involves different aspects. So gender neutral laws are needed so that equal protection be given to all victims which may be men, gay men, lesbian women, bisexuals and transgender groups.

As per the functionalists18 society is a system of interconnected parts that work together in harmony to maintain a state of balance and social equilibrium for the whole. In India legal system this equilibrium itself is difficult to establish because of huge socio-political and economic diversity. One side feminists are demanding facilities in the name of women empowerment at the same time men’s rights activists are demanding protection of their rights via gender neutrality. Laws are widely used and greatly misused at the same time. According to the Therapeutic jurisprudence legal systems affect the emotions, behaviors and mental health of people.19 Judicial decisions and policy making can change the views of people with time. So legal attention and social awareness is needed in the present matter to acknowledge the present complexities of law. So that the equality and justice can be ensure to society as whole. The shift from gender equal approach to gender neutrality will be more beneficial to a civilized society.
1 Art. 14, 15, 16, 17,18: Constitution of India, 1949
2 The Universal Declaration of Human Rights, Dec 10, 1948
3 Men’s Rights Preservation Society, Save Indian Family Foundation, Child’s Right and Family Welfare
4 Section 497 the Indian Penal Code,1860
5 Section 375 the Indian Penal Code,1860
6 Section 376 the Indian Penal Code,1860
7 Section 37, Special Marriage Act, 1954
8 Section 304 B, Indian Penal Code, 1860
9 Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

10 Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
11 Indian Journal of Medical Research article, 2010
12 The People’s Union of Civil Liberties, Tihar, 1981
13 http://resources.ecpat.net/EI/Updates/EQUATIONS_ECPAT
14 Model Penal Code § 213.1 cmt. (2010)
15 Crime in the United States 2009, at 15 (3d ed. 2009)
16 World Report On Violence Health, Chapter 6: Sexual violence, Pg 154
17 Former CJI, Altamas Kabir
18 Herbert Spencer, Emile Durkheim, Talcott Parsons etc
19 Black’s Law Dictionary 9th ed. (West Group, 2009)

Homosexuality-the legal arguments against it

safder kazmi

377 IPC DOESN’T  VIOLATE THE PRINCIPLE OF EQUALITY ON THE BASIS OF SEX ENSHRINED IN ARTICLE 14 AND 15 OF THE CONSTITUTION OF INDIA.

Article 14 of the Constitution of India guarantees two rights that the State shall not deny:

  i.            Equality before the Law

ii.            Equal protection of laws within the territory of India.

The former would mean that irrespective of any discrimination, law has to be absolutely applicable in the same manner to all. This has been an adoption of rule of law in Britain, the theory propounded by A.V. Dicey.[1] And the latter, postulates the application of the same laws alike and without any discrimination to all persons similarly situated. It denotes equality of treatment in equal circumstances.[2] In order to violate the principle of equality enshrined in Article 14 of the Constitution of India, law has to discriminatory in nature in similar circumstances. However, § 377 by a bare perusal does not qualify to be in the arena of such violation because it is applicable only to whoever voluntarily commits the said offences. Section  377 is in conformity and is in furtherance of Article 14 as it is applicable on all without any remotest discrimination.

Article 14 forbids class legislation; it does not forbid reasonable classification of persons, objects and transaction by the legislature for the purpose of achieving specific ends. Classification should be reasonable, should fulfil the following two tests:

i.        That the classification is founded on an intelligible differentia and

ii.      That differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. [3]          

In the light of preceding paragraph, it is noteworthy to bring to the light the fact that § 377, IPC has been incorporated in the statute as a curative and punitive provision in reference to sexual offences which are otherwise not included in any other section. Therefore, it can be rightfully interpreted as a residuary clause for crime related to sexual offences. Therefore, the provisions of § 375-§ 377 have to be read together and not separately if the true intention of the legislation has to be brought to light. Justice Parke has held that in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further.[4]

Thus, while enacting this Section, did not intend to include consensual and private sex within the ambit of § 377, IPC. Justice Scalia has observed that consensual sodomy, like heterosexual intercourse, is rarely performed on stage.  If all the Court means by acting in private is on private premises, with the doors closed and windows covered, it is entirely unsurprising that evidence of enforcement would be hard to come by.  (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.)  Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a fundamental right, even though all other consensual sodomy was criminalized.[5]

Therefore a  statutory provision has to be interpreted in such way that the reasonableness is judged with reference objectives of legislation and not cosmetic moral considerations.[6]

 

LEGALIZING HOMOSEXUALITY BY STRIKING DOWN § 377 IPC TO SUCH EXTENT INFRINGES RIGHT TO HEALTH AS EMBODIED IN ARTICLE 21 OF THE CONSTITUTION.

A  grand step was taken by the Court by expanding the scope of Article 21 of the Constitution of India it argued that lifein Article 21 does not mean merely animal existence but living with human dignity.[7] Therefore, the act of homosexuality itself is animal like and does not reasonably qualify to be within the ambit of natural and legitimate acts. It has been scientifically proved on various occasions that it becomes a cause of severe health hazards, and it the duty of the State to protect individuals from such activities which might hazardous to their health and the health of the society.

The Federal Centres for Disease Control and Prevention (CDC) and other health agencies report a disturbing increase in high-risk sexual behaviours and substance abuse among some groups of MSM in recent years.[8] Media reports also confirm a trend in dangerous behaviours among MSM, such as:

i.            Bug chasing. Another disturbing phenomenon among some MSM involves HIV-negative MSM who actively seek HIV infection by engaging in high-risk sexual activities with infected male partners. A 2003 Rolling Stone article brought national attention to “bug-chasing,” which the article described as “an intricate underground world that has sprouted, driven almost completely by the Internet, in which men who want to be infected with HIV get together with those willing to infect them.”[9] Carlos, a “bug chaser” who claimed to have had several hundred sexual partners and said he regularly had sex with three or four HIV-positive men a week, told Rolling Stone, “I know what the risks are…But I think it turns the other guy on to know that I’m negative and that they’re bringing me into the brotherhood. That gets me off, too.” [10]

ii.            Physical Damage: Homosexual men who engage in anal sex are at a significantly high risk for numerous health problems. The high-risk nature of anal sex is simple: the rectum was not designed for sexual intercourse. According to amfAR, “compared to the vagina, rectal tissue is much more vulnerable to tearing during intercourse and the larger surface area of the rectum/colon provides more opportunity for viral penetration and infection.”[11]In her book, Epidemic, Dr. Meg Meeker, a pediatrician, writes: “The anus opens into the rectum…which is not as well suited for penile penetration as the female vagina is. Both the anus and the rectum have rich blood supplies, and their walls, thinner than the walls of the vagina, are easily damaged. When penetration occurs, it’s easier to tear the blood vessels, which in turn increase the risk of acquiring or receiving an infection…”[12]

iii.            Anal Cancer: Homosexual men are also at an increased risk for anal cancer. [13]According to the American Cancer Society, risk factors for anal cancer include: Human papilloma virus (HPV), which causes anal and/or genital warts; multiple sexual partners; and anal intercourse.[14] Due to concerns about anal cancer, some health professionals now recommend anal Pap Smears for MSM.[15]

iv.            STDs: Compared to heterosexual men, MSM are at an increased risk of contracting a number of dangerous STDs, including HIV/AIDS. According to the GLMA, these STDs include: “urethritis, proctitis, pharyngitis, prostatitis, hepatitis A and B, syphilis, gonorrhea, chlamydia, herpes, genital warts and HIV infection.”[16]

v.            HIV/AIDS: Despite efforts by gay activists to disassociate homosexuality from the spread of AIDS, homosexual behavior, particularly among males, is associated with an increased risk of HIV. Although HIV can be transmitted through both vaginal and anal intercourse, receptive anal sex without a condom is at least 10 times more risky for contracting HIV than vaginal sex without a condom, according to amfAR.[17]

the word ‘expression’ occurring in Article 19(1) (a) of the Constitution canNOT  be read disjunctively from the word ‘speech’ and HENCE CAN NOT  include expression of sexual orientation of a citizen

Article 19 (1) of the Constitution of India reads as follows:

(1) All citizens shall have the right:

(a) To freedom of speech and expression;

(b) To assemble peaceably and without arms;

(c) To form associations or unions;

(d) To move freely throughout the territory of India;

(e) To reside and settle in any part of the territory of India…………

If the intention of the legislation was to read the two words disjunctively, then the same would have been separated while the Constitution was being drafted. The Hon’ble Supreme Court has held that the intention of the legislature is primarily to be gathered from the language used which means that attention should be paid to what has been said.[18] Furthermore, the Hon’ble Supreme Court has also held that a construction which requires for its support addition or substitution of words or which result in rejection of words as meaningless has to be avoided completely.[19] It should be observed for better interpretation of this Article that the legislation has made a deliberate effort of using the word “And” in Article 19 (1) (a) and not “or” as it has been used in Article 19 (1) (c) and Article 19 (1) (g). Thereby, this means that “And” is a compulsive inclusion and its exclusion would change the meaning and destroy the essence of the Article.

The scope of Article 19 (1) (a) has rightfully been expressed by this Court that the right to express one’s conviction’s and opinions freely, by word of mouth, writing, printing, picture or in any other manner (addressed to the eyes or the ears). It includes the expression of one’s idea by any “visible representation”, such as by gestures or the like.[20] Therefore, that Sexual orientation cannot be legitimately interpreted to be within the purview of Article 19 (1) (a).

Relying on the above mentioned points, the words freedom of speech and expression have been written together and separating them for a wider interpretation would be absurd and unjust. In this regard, Jervis, C.J has rightfully held that ifthe precise words are plain and unambiguous, then the Court is bound to construe them in their ordinary sense, the failure of which will leadto absurdity or manifest injustice.[21] Thus, the intention of the legislation was to read the words together and therefore it would ultimately lead to manifest injustice if such a wide interpretation is taken.

The Constitution strikes a balance between individual liberty and social control. A Division Bench of the Hon’ble Delhi High  Court has held on the above mentioned balance by holding that Article 19 of the Constitution gives a list of individual liberties and prescribes in the various clauses the restraints that may be placed upon them by law so that they may not conflict with public welfare or general morality.[22]

sexual intercourse of the same sex is against such established and recognised norms of human behaviour that indulgence in it may justify curtailment of individual liberty by the State within parameters of a reasonable restriction on grounds of public decency or morality under Article 19(2).

India is a diverse nation having a rich and multi-cultural heritage accommodating a majority of the religions in the world.

Our Constitution guarantees in its Preamble that India is a secular state and thus, implying that the religious sentiments of all the cultures in this community are to be respected.[23]Secularism is a basic feature of the Constitution,[24] Rule of Law[25] and the Rule of Equity.[26] Therefore,a legislation cannot be made or amended which contravenes any of the said norms of any religious community existing in our country. Acts of homosexuality are condemned both in text and context by more than one religion being practiced in our country. The Srimad Bhaagvad Gita states that a Hindu marriage joins two individuals of opposite sex for life, so that they can pursue dharma (duty), artha (possessions), kama (physical desires), and moksa (ultimate spiritual release) together. It also joins two families. Furthermore, the Quran condemns homosexuality by stating that Of all the creatures in the world, will ye approach males, “And leave those whom Allah has created for you to be your mates? Nay, ye are a people transgressing“[27] and even prescribes a punishment for such acts.[28] Even the canon law prohibits such acts.

Therefore, reasonable restriction is imposed in order to prevent that religious sentiment from being hurt of any particular community. The Hon’ble  Delhi High Court has held that the words ‘reasonablerestriction’ corresponds to the societal norms of decency, e.g, respect of rights or reputation of others, protection of national security or of public order, or of public health or morals etc.[29]

In its judgement, the Hon’ble Punjab and Haryana High Court have referred to Lord Devlin to emphasize the need of morality in the society. The Hon’ble Court has said that Lord Devlin appears says that society has the right to enforce morality as such on the ground that a shared, morality is essential to society’s existence, it is not at all clear that for him the statement that immorality jeopardizes or weakens society is a statement of empirical fact. It seems sometimes to be an a priori assumption, and sometimes a necessary truth and a very odd one. The most important indication that this is so is that, apart from one vague reference to “history” showing that the loosening of moral bonds is often the first stage of disintegration, no evidence is produced to show that deviation from accepted sexual morality, even by adults in private, is something which, like treason, threatens the existence of society.[30]

The Supreme Court has held that if the Court finds on scrutiny, that the law has not overstepped the constitutional limitations, the court will have to uphold the law, whether it likes it or not.[31]Furthermore, the Hon’ble Supreme Court has even held that if a law deals equally with members of a well-defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to the other persons.[32]

Furthermore, the Hon’ble Supreme Court of the United States of America has held that the right to engage in homosexual acts is not deeply rooted in any country’s history and tradition.[33] American Courts have also held that countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority is belief that certain sexual behavior is immoral and unacceptable constitutes a rational basis for regulation.[34]In relevance to the instant matter, it has been held by that engaging in homosexual acts outside the scope of marriage is not protected by any constitutional mandate.[35]The Hon’ble Supreme Court of the United States of America has observed that State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in validation of laws based on moral choices.[36]



[1]Wade and Phillips, Constitution and Administrative Law, 87 (1977)

[2]Mohd. Shaheb Mahboob v. Dy. Custodian, AIR 1961 SC 1657

[3]Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 487

[4] Becke v Smith (1836) 2 M&W 195

[5]Lawrence v. Texas, 539 U.S. 558 (2003)

[6] R.K. Garg v. Union of India, (1981) 4 SCC 675

[7]Francis Coralie v. Administrator, Union Territory of Delhi, AIR 1981 SC 746

[8]CDC, “HIV/AIDS Among Men Who Have Sex With Men,” CDC HIV/AIDS Fact Sheet, May 2007

[9]Freeman, Geoffery, “Bug Chasers: The men who long to be HIV+,” Rolling  Stone magazine, February 6, 2003.

[10]Ibid

[11]CDC, “HIV/AIDS Among Men Who Have Sex With Men,” CDC HIV/AIDS Fact Sheet, May 2007

[12]Meeker, Meg, MD, “High-Risk Sex,” Epidemic: How Teen Sex is Killing Our Kids, Regnery Publishing, Washington, DC: 2002, pgs. 152.

[13]GLMA, “Lesbian, Gay, Bisexual and Transgender Health: Findings and Concerns,” Journal of the Gay and Lesbian Medical Association, Vol. 4, no. 3 (2000), pg.111.

[14]American Cancer Society, “What are the risks of anal cancer,” All About Anal Cancer, www.cancer.org.

[15]GLMA, “Lesbian, Gay, Bisexual and Transgender Health: Findings and Concerns,” Journal of the Gay and Lesbian Medical Association, Vol. 4, no. 3 (2000), pg.120.

[16] Ibid

[17]amfAR, “HIV Prevention for Men Who Have Sex With Men,” Issue Brief  #4, June 2006, pgs. 1-2.

[18] Gwalior Rayon Silk Mfg. Co. Ltd. v. Custodian of Vested Forests, AIR 1990 SC 1747

[19] Shyam Kishori Devi v. Patna Municipal Corporation, AIR 1966 SC 1678

[20]Romesh Thapar v. State of Madras, (1950) SCR 594

[21] Abley v. Gale, 20 L.J.C.P (N.S) 233 (1851); Arul Nadar v. Authorised officer, Land Reforms, (1998)7SCC 57

[22]A.K. Gopalan v. State of Madras, (1950) SCR 88 (253-54)

[23] See The Preamble, The Constitution of India, 1950

[24]Shri Adi Visheshwara of Kashi Vishwa Nath Temple, Varanasi v. State of U.P, (1997) 4 SCC 606

[25]High Court of Judicature at Bombay v. Shirish Kumar Rangrao Patel, (1997) 6 SCC 379

[26]Indira Sawhney v. Union of India, (2000) 1 SCC 168

[27] Qur’an (26:165-166)

[28] Qur’an (4:16) – “If two men among you are guilty of lewdness, punish them both.

[29]Director General, Directorate General of Doordarshan v. Anand Patwardhan, AIR 2006 SC 3346

[30] Kailash Alias Kala v State of Haryana, 2004 CriLJ 310

[31] Anwar v. State of J&K, AUR 1971 SC 337(388); Arunachal v. Khudiram, (1994) Supp (1) 615, para 75

[32]Chiranjit Lal v. Union of India, (1950) SCR 869; State of Bombay v. Balsara, (1951) SCR 682 (708-09)

[33]See Bowers v.  Hardwick, 478 U. S. 186(1986)

[34]Williams v.  Pryor, 240 F. 3d 944, 949 (CA11 2001)

[35] Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999)

[36]Supra Note 14

Prostitution

Introduction

 

Prostitution is the act or practice of providing one’s body for sexual purpose to another person in return of payment. The person who carry out such activities are called prostitutes. Prostitution is often described as the oldest profession. Not surprisingly, the ethics of prostitution have often been debated. In general, most people claim that it is morally unacceptable. Yet, like all such practices, it continues to thrive.

 

However, as a researcher of jurisprudence, what interests me is not the last media frenzy about prostitution, but the ethics of the practice itself. Rather than take the usual approach of simply asserting it is immoral, I will consider the various plausible reasons as to why it should be considered immoral and also argue that, under certain conditions, it can be just as morally acceptable as other forms of work with the help of Kantian philosophy of liberalism.

 

In India, the Immoral Traffic Prevention Act (ITPA) is the only piece of legislation dealing with the crime of trafficking but it only considers trafficking as prostitution and is not in accordance with International Policies and Guidelines, including the Palermo Protocol of 2001, which India has signed. This is an unsatisfactory state of affairs because Article 23 of the Indian Constitution prohibits “traffic in human beings and all similar forms of forced labour”. Prostitution, the oldest profession on earth is not something which the Indian society today looks up to.

 

HISTORY

Prostitution was a part of daily life in Greece and represented the top level economic activities. It had been a practice in Armenia where the noblest families even gave their daughter to the service of God Acilisena. In Ancient India these girls were referred to as devadasi and were dedicated to gods. This practice later ritualized into prostitution where the girls were used as prostitutes to please the upper class people and were known as jogini. This ritual started after the fall of Buddhism in 6th century.

 

TRADITIONAL VIEW

In Kamasutra by Vatsayana prostitution was not considered disgraceful but was a noble profession where the prostitutes were prized by their lovers and could deny anyone at their will. She enjoyed a position of power. They were considered as women of high intelligence and manners by the Nawabs of Lucknow. They were appointed to impart training to their sons and daughters.

 

MODERN VIEW

In today’s world of commercialization the profession has become very callous, cruel and brutal. The profession which was earlier regarded as noble is now degraded just because of uncleanness of lust and ravage it has become a vulgar form of soul trade. There is a need to refer to the myths were the profession was regarded as noble and wake up the nation from the clutches of ignorance.

Present Legal Status Of Prostitution In India

 

The Law governing prostitution in India is Immoral Traffic (Prevention) Act which is a 1986 amendment to the primary law passed in 1950 {known as the Immoral Traffic (Suppression) Act}. The law does not criminalize prostitution per se but only organized form of prostitution is against the law. If a woman uses attributes of her body voluntarily and individually she goes unpunished. But the law prohibits/criminalize-

 

• Seduction/solicitation of customer

• Prostitution anywhere near a public place

• Publication of phone number of call girls

• Organized form of prostitution i.e. a brothel, pimps, Prostitution rings etc.

• A sex worker being below 18 years of age

• Procurement and trafficking of women

 

Position In Other Countries

 

Prostitution is legal with some restrictions in Canada, almost all of Europe including England, France, Wales and Denmark, most of South America including most of Mexico (often in special zones), Brazil, Israel (Tel Aviv is known as the brothel capital of the world), Australia, and many other countries. It is either legal or tolerated in most of Asia. Even Iran has “temporary wives”, which can be foronly a few hours. In 2003, New Zealand passed one of the most comprehensive decriminalisation acts, which even made street hookers legal.

 

IMMANUAL KANT – In this paper, I will examine the reasons for Kant’s view, and attempt to show that it is nonetheless possible to give an argument along Kantian lines in favour of prostitution.

Kant outlines four possible cases in which a decision is carried out in respect of duty:

 Case One involves actions that are contrary to duty (such as stealing);

 Case Two involves actions that are dutiful but done only because of fear of penalty or sanction (such as paying taxes);

 Case Three involves actions that accord with duty but which the agent is already inclined towards because it is pleasurable in some way (such as a labour of love); and

 Case Four involves actions that accord with duty but are contrary to inclination (such as not committing suicide, despite being in unbearable distress)

The matter of prostitution lies under case fourth where prostitutes perform their activities that are contrary to their penchant but still they do it just for the sake of sustainence i.e. they cannot commit suicide, despite being in unbearable distress.

 

For the past few months an argument has been raging on the possible legalization of prostitution in the country. The argument has taken different forms and has sadly been entertained by reasonable people amongst them medical practitioners, members of parliament and some academicians. At the heart of the argument are three issues.

 

1. About the value and sanctity of the human body ? – Is the human body naturally anything special that needs protecting or can be violated, sold in sex or slavey or lacerated in any way?

 

2. About our understanding of sex – Is sex an animal instinct which could be gratified on the basis of one’s Pula power?

 

3. What is our moral reference point or moral standard? On what basis do we determine wrong or right?

 

Is our moral standard ‘the ape-man’ theory of evolution; that we are merely on earth by chance, having come through evolution and having survived through that old-fashioned tired maxim ‘survival of the fittest’. Or our moral reference in philosophers like the humanist Rene Discartes with his declarative “I think, therefore I am”; David Hume; the agnostic, Immanuel Kant, Soren Kierkegaard, Friedrich Nietzshe, Bertrand Russell (whose life can be summarised by the word ‘contradition’), or Jean-Paul Sartre, the existentialist with his famous credo ‘Travel, polygamy and transparency’. Or do we turn to faith, Christianity, as a standard against which to live our lives?

Immmanuel Kant On Prostitution

 

-“Always recognize that human individuals are ends, and do not use them as means to your end”.

 

… to allow one’s person for profit to be used by another for the satisfaction of sexual desire, to make of oneself an Object of demand, is to dispose over oneself as over a thing and to make of oneself a thing on which another satisfies his appetite, just as he satisfies his hunger upon a steak. But since the inclination is directed towards one’s sex and not towards one’s humanity, it is clear that one thus partially sacrifices one’s humanity and thereby runs a moral risk. Human beings are, therefore, not entitled to offer themselves, for profit, as things for the use of others in the satisfaction of their sexual propensities.’ Immanuel Kant1

It would be hard to find a more complete condemnation of prostitution than the above quotation from the philosopher Immanuel Kant (1724-1804). For him, prostitution was the ultimate example of treating a human being as merely a means to an end, and was despicable (shameful) because it thereby placed a human being on the same footing as an animal.

In his writings on sex and marriage, Kant provided a seemingly traditional defence of monogamy – the only sexual relation that is morally acceptable is that which occurs between a married man and woman. However, the argument he gave for this differs tremendously from the natural law tradition that had predominated in Western thought.

For Kant, the foundation of ethics was his famous Categorical Imperative: it is always wrong to treat another person as merely a means to an end, rather than as an end-in-itself (which is to say, one must show proper respect for other persons). This is a secularized version of the socalled Golden Rule, to treat others as one wishes to be treated. But what is it that constitutes a ‘person’? For Kant, it is the possession of rationality. The ability to reason raises us above our passions, and allows us to act autonomously. We are not mere creatures of instinct. In respecting others, we are acknowledging the fact that they are fellow reasoning creatures, fully responsible for their actions. Anything that goes against reason should be suspect, since it lowers our status to that of non-reasoning animals, who are without moral worth.

What Kant feared most of all, because it was the prime disturber of reason, was sexuality. In his estimation, a sexual urge is the desire to possess possess another person. Those who engage in sexual acts for the sake of pleasure “make of humanity an instrument for the satisfaction of their lusts and inclinations, and dishonour it by placing it on a level with animal nature. Sexuality, therefore, exposes mankind to the danger of equality with the beasts.” Since morality can only pertain to rational creatures, such a lowering of status is the worst sort of degradation possible. One loses one’s moral sense when lust becomes dominant.

Kant was not noted for his turn of phrase – his style was usually a plodding one. But in writing about the dangers of giving in to sexual urges, he is positively eloquent: “Sexual love makes of the loved person an Object of appetite: as soon as that appetite has been stilled, the person is cast aside as one casts aside a lemon which has been sucked dry.”3

For Kant, sexual desire, in-and-of-itself, is potentially the cause of the deepest degradation. It can make a person no better than a beast. To treat another person as an object of desire is wrong. “This is the only case in which a human being is designed by nature as the Object of another’s enjoyment. Sexual desire is at the root of it: and that is why we are ashamed of it, and why all strict moralists, and those who had the pretensions to be regarded as saints, sought to suppress and extirpate it.”

One dishonours another person by focusing only upon his or her sexual attributes. It is the supreme case of treating another as merely a means to an end, the end being sexual gratification.

Yet such desires are extremely powerful, and for most people – especially non-philosophers – quite hard to control. What to do? Using the services of a paid professional reliever of sexual tension is one possibility, but it is one that Kant strictly forbids. Prostitution is impermissible for Kant, not because of the harm it might cause to society (he was not a consequentialist in his ethics), but because it treats a person as a commodity. Persons are not at their own disposal. They do not own themselves, because if they did, they would be a thing. “To let one’s person out on hire and to surrender it to another for the satisfaction of his sexual desire in return for money is the depth of infamy.”5 One would thereby be acquiescing in the act of co modification.

In Kant’s view, even mutual sexual satisfaction, rather than the selling of sexual services, would be morally impermissible, since it still treats a person as a thing. It involves showing concern for only a part of them, rather than for their personhood in its entirety. It shows a lack of regard for the other individual’s reasoning capabilities, as opposed to their sensual qualities. The only morally acceptable route for sexual expression would be through legal matrimony. Only marriage allows for a morally acceptable exchange of sexual pleasure. “The sole condition on which we are free to make use of our sexual desires depends upon the right to dispose over the person as a whole – over the welfare and happiness and generally over all the circumstances of that person.”

CONCLUSION

Author hereby agrees with Kant that objectification is morally unacceptable, but raises interesting questions about what this means. The notion of ‘respect’, she argues, is not the same for all people in our society – women are still often treated as less able to live autonomous existences, less able to function on their own. It is easier to objectify women as a whole, because the roles they are allowed to play in society are still far more restricted than those of men. Stock stereotypes ring more true when counterexamples are hard to find. Since their status is so different, the loss of respect has greater repercussions for women in general. Pornography is often pernicious because it perpetuates images of the so-called ‘fallen woman’. Garry writes: “This fall is possible, I believe, because the traditional ‘respect’ that men have had for women is not genuine, wholehearted respect for full-fledged human beings, but half-hearted respect for lesser beings, some of whom they feel the need to glorify and purify.”

If one accepts human sexuality as a natural and good aspect of life, rather than a degrading and bad aspect, it takes away much of the force of Kant’s argument against prostitution. Rather than looking upon sexual desires as flaws which place us on the level with beasts, they can be seen as drives that unite us all. Whatever our station in life, the libido is common property. Kant is opposed to treating humans as merely means to an end. But he does not hold that it is wrong in-and-of-itself to satisfy human needs. For example, one can fulfill the role of being a food server, and thereby help to alleviate hunger. It would be morally unacceptable to treat a waiter as merely a serving-thing. One should recognize his/her common humanity. But giving money to the waiter in recompense for services rendered involves two free agents mutually living up to the provisions of an agreed-upon transaction. In a similar fashion, sex workers provide a valuable service in alleviating the sexual hungers of their clients. One might object to this if one holds that only sex acts which lead to procreation are morally acceptable, but as was seen earlier, Kant did not ascribe to such a natural law line. Thus, if one decouples Kant’s repulsion about sexual acts from his overall contractual emphasis, a strong case can be made in favour of reciprocity in sexual relations, outside of a marriage contract.

While Kant’s lemon analogy seems to say a good deal about his own negative attitudes toward sexuality, when it comes to discussing the morality of prostitution, his emphasis on reciprocity and respect is still fruitful.

 

DOMESTIC VIOLENCE AGAINST WOMEN IN INDIA

In India where almost half of the population are women, they have always been ill-treated and deprived of their right to life and personal liberty as provided under the constitution of India. Women are always considered as a physically and emotionally weaker than the males, whereas at present women have proved themselves in almost every field of life affirming that they are no less than men due to their hard work whether at home or working places. Behind closed doors of homes all across our country, people are being tortured, beaten and killed. It is happening in rural areas, towns, cities and in metropolitans as well. It is crossing all social classes, genders, racial lines and age groups. It is becoming a legacy being passed on from one generation to another. But offences against women which reflects the pathetic reality that women are just not safe and secure anywhere. According to a latest report prepared by India’s National Crime Records Bureau (NCRB), a crime has been recorded against women in every three minutes in India. Every 60 minutes, two women are raped in this country. Every six hours, a young married woman is found beaten to death, burnt or driven to suicide.

Violence against women is not a new phenomenon. Women have to bear the burns of domestic, public, physical as well as emotional and mental violence against them, which affects her status in the society at the larger extent. The statistics of increasing crimes against women is shocking, where women are subjected to violence attacks i.e. foeticide, infanticide, medical neglect, child marriages, bride burning, sexual abuse of girl child, forced marriages, rapes, prostitution, sexual harassment at home as well as work places etc. In all the above cases women is considered as aggrieved person.

The term used to describe this exploding problem of violence within our homes is ‘Domestic Violence’. This violence is towards someone who we are in a relationship with, be it a wife, husband, son, daughter, mother, father, grandparent or any other family member. It can be a male’s or a female’s atrocities towards another male or a female. Anyone can be a victim and a victimizer. This violence has a tendency to explode in various forms such as physical, sexual or emotional. ‘Domestic Violence’ includes harms or injuries which endangers women’s health, safety, life, limb or well being, whether mental or physical. It may also be through physical, sexual, verbal, emotional and economic abuse. According to ‘United Nation Population Fund Report’, around two-third of married Indian women are victims of Domestic Violence attacks and as many as 70 per cent of married women in India between the age of 15 and 49 are victims of beating, rape or forced sex. In India, more than 55 percent of the women suffer from Domestic Violence, especially in the states of Bihar, U.P., M.P. and other northern states.

What amounts to domestic violence against women? -Domestic Violence undoubtedly a human right issue where it is very important to know what actually leads to act of domestic violence. The most common causes for women stalking and battering include:- exploitation of women for demanding more dowry, discrimination of women, alienation of women’s self acquired property fraudulently, torture by husband and in-laws of the husband, arguing with the partner, refusing to have sex with the partner, neglecting children, going out of home without telling the partner, not cooking properly or on time, indulging in extra marital affairs, not looking after in-laws, cruelty by husband or in-laws mentally or physically, abusing & insulting by using vulgar language, sexual harassment, molestation, immoral traffic, rape, sodomy and all other inhuman acts. In all above stated causes women are subjected to torture and will be considered as the aggrieved person. Usually violence takes place due to lack of understandings between the couple as well as in the family.

The consequences of domestic violence attack on women, which will affect victim as well as family of the victim. Domestic Violence affects women’s productivity in all forms of life i.e. assaulted women will always get agonized and emotionally disturbed and remain quite after occurrence of the torment. The suicide case of such victimized women is also a deadly consequence and the number of such cases is increasing day by day. A working Indian woman may lose her efficiency in work or drop out from work in some cases. Domestic Violence may affect the life of children at the larger extent because child will be having greater attachment with her mother and once the mother’s grief and sufferings revealed then child may turn silent, reserved and express solace to the mother. In some of the cases violence will lead to maintain distance from the partner whereby sexual life gets affected adversely. Sometimes marriage life will become a burden to the spouse and one of the spouses will opt out for divorce or separation which again affects life of the children.

In a case where wife is beaten up by her husband doesn’t amount to domestic violence unless a sufficient reason of violation of right to life is shown. In another case where the women just not given food, it amounts to domestic violence if it is intended to achieve the ultimate purpose of necking her out of the benefits of shared household.

To prevent violence against women and to protect the rights of aggrieved women, the legislation ‘The Protection of Women from Domestic Violence Act, 2005’ was passed by the parliament. According to this act every women who have been deprived of their right to life by the act of husband or relatives of the husband, can file a complaint to the protection officer, police officer or magistrate in the form of ‘Domestic Incident Report’ (Similar to FIR). Complaint can be filed by the victim /aggrieved person or relatives, it will be considered as the prima-facie evidence of the offence. Every ‘Domestic Incident Report’ has to be prepared by the Protection Officer which will assist in the further investigation of the incidence. The protection officer will pass certain orders i.e. protection of the women, custody of respondent and order of monetary relief to the victim.

The Government of India should come out with some more stringent laws to protect the rights of women who are victims of violence of any kind occurring within the family, so that it will work as the preventive measure to eradicate the crime. A strict law to be passed to punish those women who are filing a false compliant against husband or relatives by misusing of Domestic Violence Act so that there will be fair justice to all.

 DHAWESH PAHUJA