Blunder by SC in dismissing PIL to make law gender-neutral

 [Post In Progress]

I will analyze the petition and judgment fully and propose the way forward. Gender neutral law is the right of every citizen and we I, as citizen of India, will not accept or tolerate the injustice to any citizen of my country whether based on gender or religion or any other criteria and more so, when this injustice happens to myself.

On Feb 2, 2018, SC heard the PIL filed by Adv. Rishi Malhotra. The petitioner sought to challenge the constitutional validity of Sections 354 (assault or criminal force with intent to outrage her modesty), 354A (sexual harassment), 354B (assault or use of criminal force to woman with intent to disrobe), 354C (voyeurism), 354 (stalking) and 375 (rape) on the grounds that it was in violation of Articles 14 (right to equality) and 15 (discrimination on grounds of sex) of the Constitution.

SC Bench, headed by Chief Justice Dipak Misra and consisting of Justices AM Khanwilkarand and DY Chandrachud, stated that these provisions are affirmative "for the protection of women and in their favour". Malhotra's plea argued that that the words "any man" should be replaced by "any person". 

His plea stated that "crime has no gender and neither should our laws. Women commit a crime for the same reasons that men do. The law does not and should not distinguish between criminals and every person who has committed an offence is liable to punishment under the Code."

Unfortunately, CJI Deepak Misra just passed the buck stating job of amending legislation is of Parliament and judiciary cannot interfere in it and cannot deal with legal policies and mechanisms to effect this change. "We cannot direct the Parliament to collect data regarding it". 

"We are not saying a woman cannot rape a man but these come under a different offence under IPC. Even if we feel that the legislation should have been gender-neutral, what we feel is that the legislature would have acted as per what was the urgent requirement," Chief Justice Misra said. "Legislations come as a response to social and collective cry. These sections are victim-oriented and the Parliament has acknowledged a woman as the victim," he added. "Parliament has recognised a degree of harm against women and framed this law. Similarly, in sexual harassment instances, Parliament felt it is the woman who is the victim and accordingly has recommended the law to deal with it."

“Despite male rape not being researched as widely as female rape, there are several statistics to suggest that men are raped and the prevalence of men rape is wider than is generally presumed.”

Ref.: 

1. https://www.firstpost.com/india/sc-dismisses-plea-to-make-sexual-assault-gender-neutral-move-reflects-courts-reluctance-to-view-rape-cases-as-victim-centric-4337983.html

2. https://www.thenewsminute.com/article/should-rape-laws-india-be-gender-neutral-experts-weigh-75834


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