BEYOND THE PATRIARCHAL PEN: Crafting Inclusive Laws in India

The Author of this Blog Article is Ms. Anjali Singh, a law student pursuing B.A.LL.B, from Himachal Pradesh National Law University (HPNLU).

Introduction

The society consists of a wide spectrum of people living together, people of different genders and sex. Gender neutrality, however, highly talked about but a little or no steps have been taken for the betterment. Women, transgenders, or even homosexuals are governed under the same laws biased towards men, and even majorly drafted by men. Traditionally, legal frameworks were conceived in male-dominated societies, with rights and protections tailored primarily to men. This legacy persists, manifesting in gender-biased language and laws that often overlook or discriminate against women and other genders. Despite some progress, significant biases persist. Laws addressing crimes like rape, maintenance, inheritance, etc are narrowly defined and failing to account for marital rape, reflecting outdated societal views on gender roles.

There are many critics as well as many proponents to this shift of the traditional trends. From the changes in law or the language of law, it is going to be a cumbersome and difficult Odessey. Talking about the problems whether the inherit bias of the language or the problems in changing the laws, the article follows some way outs and issues to pursue them. The support and haul for this not-so-talked about issue is a need for the society and our legal system.

Law is justice and equality; drafting a law is providing justice and equality, coding it in the very draft of the rules of the nation. But is there any unbiased law written or implemented in the nation? “The second gender” or the females has been fighting for its emancipation from the patriarchal-societal norms and injustice for decades. Little justice was won, and calls for justice started coming from the different sections, or here, different genders of the world. Historically, the initial idea and concept of rights were the invention of men. The society was male-driven. When the property and life of men were threatened and exploited, they came up with natural rights and regulations to protect them. Women were not thought to have any rights as they were not allowed to own any property nor were they fighting or working. They were to marry and give birth. It took decades to have some basic or natural rights for women, such as property rights and many are still fought for, even the basic ones, such as the right to abortion. The fight for the rights and acceptance of other genders in society remains a long one. The concept of natural justice was not for humans but for men so are the laws.

Starting from the drafts ‘men’ being of a particular gender, drafting rules from the lens of their gender; inherent gender biases of the language; or biased and unequal rules towards other genders except one, drafting also portrays nature and ideology of our society. Gender neutrality is not an alien concept but the concept of more than two genders and gender equality remains a taboo. Initiating with shedding some light on these gender-related terms in the purview of drafting;

Gender-bias: Inclination of laws towards a particular gender ignoring the needs, or rather, unjust towards others. Such as rape and inheritance laws.

Gender-sensitivity: Different roles, needs, and behaviours towards different genders. Drafting rules according to different needs and personalizing laws with gender sensitivity. Gender neutrality: Making laws with keeping in mind both, male and female, which are not biased and represent both. Such as the use of both the pronouns- she/he or his/her.

Gender inclusivity: Gender is a wide spectrum, different from biological sex, in society with different roles and needs; drafting in a sense that is inclusive and acceptable to the genders in the country.

The language in which we draft our laws is in itself a biased language like many that gives birth to- Language issues: English in itself is a gender-biased language. It is not just English, it is the case of many languages; the most gendered languages include Hindi, French, and Spanish. There are quite a few languages, such as Finnish, Estonian, and Hungarian, which are gender-neutral. But in India, English is the preferred language for drafting, so our focus is there:

The use of universal he/him pronouns

The pronoun 'he' is used as an umbrella to all the genders in the laws drafted. This concept of universal he is incorporated in the very Acts of Interpretation in the country. Take an example of Sec 13(1) of the General Clauses Act, which lays, "In all [Central Acts] and Regulations, unless there is anything repugnant in the subject or context, words importing the masculine gender shall be taken to include females. [1]" In section 8 of the IPC [2] - the pronoun, "he" & its derivates mentioned in the Indian Penal Code are used for any person whether it is male or female. In various other parts of the laws such as in illustrations, the use of 'he' subsuming all other gender identities is rather customary. However, there have been some indubitable changes in the old trends such as the Data Protection Act, 2023; section 2(y)iii, "she" in relation to an individual includes the reference to such individual irrespective of gender. Another example is the Bhartiya Nyaya Sanhita- In section 2(9) “gender”—the pronoun “he” and its derivatives are used of any person, whether male, female, or transgender. However, there remains the use of male pronouns to include all genders in BNS but the inclusion of transgender is a step ahead.

extensive use of 'man' words

Mankind, manpower, manmade, workman, draftsman, chairman... the list is incessant. These 'man' words are in myriad, in the specific domain of drafting or even in the general language. The idea from the history of this patriarchal society where men were the pivotal force of society and posts perseveres in today's society and hence, in the codes. Women couldn't work or pursue any profession so almost every profession were of men, indicating men. The use of the word poet for everyone and not poetess is one such example. Other examples are in the laws, such as the Workmen's Compensation Act, of 1973[4], the name itself contains the gender-biased word, workmen. Another extensively used word in commercial and trade laws is salesman. These are some examples of codes, in the daily working of the judiciary, too, the customary use of titles such as "your lordship" and "my lord" signifies the same matter in question.

The next issue comes of the gender-biased laws in this gender-biased drafting. Men have been drafting codes from the very initial codes of society where females, especially the wife(s), were the property of men and were the birth-givers. Women were to be kept pure and polluting them was regarded as derogatory to the man whose property she was. Initially, this law was to protect the right to property, including the wife, of a man. Even this "birth-giver" concept was a way of oppression towards women and still they're fighting their right of abortion. Let's take an example of IPC; section 375 [5] lays down the offense of rape.

Rape only against a female by only a male, a man cannot be raped nor a woman can rape, and if that rape is by her husband, it's not rape whatsoever which substantiates the orthodox thinking of the wife being the property of their husband, consent does not matter here. The definition of rape itself also does not reflect a woman's experience. The penetration requirement is linked to conservative notions of chastity and the fear of pregnancy by someone other than the legitimate father.

Other laws, even personal laws, lay down the rule of a male heir for inheritance and succession. In Hindu law, the karta of the family can only be a male, which substantiates the persisting patriarchy. In the very recently drafted Bhartiya Nyaya Sanhita, section 377 talks about rape; still with the same conventional rules where only a woman can be raped not a man or transperson, that too not by her husband. There is a never-ending list to this. There has been improvement, giving hopes for a better and inclusive future. Abrogation of section 377 from the IPC that upheld the illegality of homosexuality, is one of them. However, we are still far-off from the justice and equality for all.

There could be several ways to improve these ongoing trends of history. Starting by inclusion of more diverse gender in the making of law. Men should not be the only one drafting and continue drafting. There should be more females, transpersons, or homosexuals to promote gender sensitivity and neutrality in the laws drafted.

There are various ways to improve gender inclusivity in drafting as well as there are quite several people who defend the present scenario. First, the use of neutral and inclusive pronouns such as "they/them" while drafting instead of he/him. Use of he/she or him/her does make some difference but still does not succour the concept of gender neutrality. Many say, this would distort the language and promote ambiguity in the laws, such as they/them is plural pronouns and cannot be used for an individual. However, the language is ever-evolving and when he/him have been used to represent every other gender for decades, use of they/them would not be a bigger problem.

The second way out could be, which is not a complex or technical one, the use of gender- neutral words instead of man words. The recent use of ''chair'' or ''chairperson'' instead of ''chairman'' have become quite prevalent. In the same way, there are easy and better words to use to promote gender neutrality, such as "workers" instead of "workmen", "humanity" instead of "mankind", "salespersons" instead of "salesmen", "police officers" instead of "policemen", "firefighter" instead of "fireman", and so on. Accordingly, by small and easy steps, our subconscious patriarchal concepts would improve and will, indeed, give substantial differences in the future.

Another issue people come up with is that the codes are ancient made and exhaustive, it is almost impossible to change or add something so complex. Or, it might include amendments of many laws and repeal of others; as defended during the inclusion of marital rape as an offence. Undoubtedly, adhering to some substantial change in the codes could be burdensome. But the slow steps would be laudable. As abrogation of section 377 has been appreciable. In the same way more gender-neutral laws are to be implemented and gender-biased laws should be amended or repealed.

These alterations and amendments are a need of this present society and future. To change the influence of patriarchy on conscious as well as the subconsciousness of the people of different generations and imbibe the knowledge and widen our horizons towards the idea of gender- inclusivity.

References:

1. General clauses act § 131 (1897).

2. Indian Penal Code § 8 (1860).

3. Data Protection Act § 2(y) (2023).

4. Workmen Compensation Act (1973).

5. Indian Penal Code § 375 (1860).