Gender neutral Laws- challenge to absurd gender distinctions

As our society is evolving and moving towards a new phase in every sector there is an urgent requirement to address sexual harassment not only for women but also for other genders i.e., third gender. The Supreme Court in a landmark judgment of National Legal Service Authority vs. Union of India 2014, recognized the third-gender rights and gave them reservation in the OBC category so that they can also live their life with dignity.

Under this judgment, the Supreme Court has asked the central government and the state government to devise social awareness campaigns for re-establishing their respect in society.  But as soon as the third-gender i.e. LGBTQ community got recognition within the society and given opportunity to get educated and employed, they continued to face sexual harassment at the workplace. But, there is no law regarding the protection of their dignity in society if it is outraged by any random man.

Addressing the same issue a PIL was filed in the Supreme Court for making the required amendment in the law regarding the sexual harassment under section 354A of Indian Penal Code. This PIL was moved by a practising Advocate ReepakKansal for passing an Anti-Discriminatory bill against sexual offences at public or private space and also making such act as the criminal offence which needs to be punished. 

What are the reasons taken for filing the plea?

The reasons that are taken for filing the plea are as following:

1. The laws which are enumerated in India is related to men and women and the third-gender is none of them both. So, it is the time that we make laws for them too as they are also eligible to be protected and have their human rights.
2.  The absence of no law for the third-gender community violates the article 14 to 16 and article 21 of the Constitution of India which says that the state should ensure that every person gets equal right to be protected in the court of law, there should be no discrimination based on religion, race, caste, place of birth or sex, concerning the employment they should be given equal opportunity and they also have right to their liberty. 
3. The constitutional validity of section 354A of IPC was challenged. As the transgender community is deprived of moving to the police station for filing their complaint against such acts.
4. In the plea, the petitioner has also mentioned such incident where a transgender was informed by the police that there is no law against a sexual offence committed against a transgender so they are incapable in lodging the FIR.
5.  There is also a need to enforce the Universal Declaration of Human Rights of which India was a signatory.

What does section 354A of IPC states?

Section 345A of the Indian Penal Code, 1860 is regarding the act which is considered to be sexual harassment and the punishments which are awarded to such offenders. the following act committed by any man will be considered as sexual harassment:

•    physical contact and advances involving unwelcome and explicit sexual overtures; or
•    a demand or request for sexual favors; or
•    showing pornography against the will of a woman; or
•   By making sexually colored remarks shall be guilty of the offense of sexual harassment.

The punishment under this section depends upon the act a man does under sub-section 1. If a person commits an act related to clause (i) or (ii) or (iii) will be punished with rigorous imprisonment of 3 years or fine or both. However, if a person commits an offence under clause (iv) will be punished with imprisonment of not more 1 year or fine or both.

The offence committed under section 354A is considered as cognizable and bailable offence and can be tried by the Magistrate. 

What was the apex court respond on the PIL?

A three-bench justice comprising of the Chief Justice of India S.A. Boadeaccepted the concerns shown by the petitioner and asked the Central government to prepare their stand in the matter along with this the bench asked Senior Counsel Vikas Singh who was presenting the petitioner side to prepare a list of matters where the courts have referred to the Vishakha Guidelines.

The matter is still pending in the court and it was left to be heard soon.

What is Vishakha Guideline?

Vishakha guidelines were laid down in the case of Vishakha and others vs. the State of Rajasthan by the Supreme Court. This case was regarding the sexual offences done against a female in the place of work by another male. Under this, it is the duty of the employer or others who are considered to be an overseer to prevent such actions from taking place and provide the steps to be taken for settling the matter.

The guidelines define the act of sexual offence as the following:

•  when there are physical contact and advances
• demand or request for a sexual favour
• showing pornography
• And any such unwelcomed verbal or non- verbal act.

 The guidelines also mention the ways under which such an act can be avoided by the employer. They are as following:

1.   There should be a notification circulated within the workplace that any kind of sexual harassment is not acceptable and prohibited.
2.   The rules and regulation issued by the government and public sector should also mention that sexual harassment is prohibited and is punished in their discipline and conduct notification.
3.     In the Industrial Employment Act, 1946 there should be mention of the prohibition of the sexual offences for those who are employed in the private sector.
4.    A protective environment should be maintained so that no female employee ever feels as if she is in a disadvantageous position. Also, proper work ethic and hygiene should be ensured.

The Vishakha guidelines were for ensuring the protective work environment and providing work security where her job cannot be taken away and no one who is in an authoritative position takes advantage of her position. Also, any person who is not employed in the organization the steps can be taken against such third party by the employer who is responsible for providing protection to the female employee.

The undisputed corner of the law

This Public Interest Litigation regarding the addition of sexual offences against the LGBTQ community shows that our society still considers that the sexual offence takes place against a woman and a minor child. The court is failing in recognizing the men rape and sexual offences against a third-gender individual. In Sakshi vs. Union of India case, the need for introducing the gender-neutral sexual offence was put forth in the 172^nd law commission report.

But still there has been no development taken so far in amending the laws. However recently, there has been various amendments and laws were introduced against rape and sexual offence but none of the amendments ever discussed the rights of the third gender i.e. LGBTQ community.

The ministry of Women and Child Development have introduced amendments in the POSCO act for the protection of children from sexual offences. The amendment has increased the term of imprisonment and a convicted person can be imprisoned for lifetime. Before storage of pornographic material was not punishable but not it is punishable with imprisonment from 3 years to 5 years or fine or both. The increase in the punishment shows the graveness of the act and it also ensures the protection of the child from any sexual offence committed against them.

Also, there has been amendment made in some sections of IPC which are introduced such as section 376 of IPC where the punishment related to sexual offence was increased and it was rewritten and the punishment for persons who is responsible for maintaining the law and order was added. Also various new sections were inserted such as section 376D, 509A, 509B, 166A etc. in IPC also amendments were made in the Code of Criminal Procedure.

But all these amendments were regarding the sexual offence committed against a woman and a minor child but none are recognizing the sexual offence that takes place in India against LBGTQ community at large and they are still not assured about the law for lodging complaint against such offender which also violates right as the citizen of India.

Conclusion

This PIL comes as a ray of hope for the third-gender community. The apex court is yet to give their final verdict on the matter. In past, the third gender community has faced lots of discrimination and they cannot voice their stand because of lack of provisions in the Indian laws.

It is the need of the hour to also address them within our law provision by amending the laws and giving them equal rights to be protected and to live with dignity. Also, any change in the society comes with the introduction of law and these law shapes and define our life to a meaningful existence.

Samridhi Srivastava

BA.LLB

LLOYD LAW COLLEGE, GREATER NOIDA

Disclaimer: This article is the personal opinion of the author. The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of any Indian Government or any other Government of the world. This article is only opinion and does not render ant personal or professional advice.