Understanding Gender Rights in India: Legal Protections and Challenges

Gender rights are the claims and freedoms recognized by normative legal codes, social inclusion, and cultural practices on people as per their gender. These rights are critical for making possible equality, dignity, and non-discrimination while creating a balanced society. This is particularly true in India, where gender roles have been traditionally defined by societal norms. It has worked against stereotypes and has created a more inclusive framework through fighting gender rights.

The Constitution of India, through provisions like equality before the law (Article 14) and prohibition of discrimination on the grounds of sex (Article 15), has a robust basis for gender justice. However, often the reality is that the ground norms and internalized meanings of masculinity and femininity deeply root in patriarchal culture and this hinders the realization of equality in its true sense.

While women have historically faced structural discrimination and continue to fight for safety, representation, and equal opportunities, issues faced by men, such as the stigma around mental health and vulnerability to false accusations, remain underexplored. Similarly, the rights of transgender and non-binary individuals, despite legislative advancements like the Transgender Persons (Protection of Rights) Act, 2019, are far from adequately safeguarded, with societal stigma and lack of infrastructure posing significant barriers. 

Therefore, gender rights cannot be merely an ethical obligation, but a compulsion to realize in constructing a just society. Gender justice cannot be achieved by focusing solely on the challenges of one group while neglecting others. This article advocates for a holistic approach, emphasizing that every gender’s unique struggles and contributions must be acknowledged to create an ecosystem of equality and mutual respect. Only through such inclusivity can India progress towards true gender equity. 

Historical Perspective on Gender Rights & Equality in India

Traditionally, Indian society has placed itself within rigid gender hierarchies according to religious and cultural norms. Texts, such as Manusmriti, have furthered such patriarchal structures by mandating that women have subordinate roles. In a similar way, non-binary and transgender identities were revered in India pre-colonialism because of their association with spiritual roles in both Hinduism and Islam. Later, through the ages of colonial rule, they were systematically marginalized.

The colonial period marked the beginning of legislative reforms addressing gender inequality. Initiatives like the abolition of Sati through the Bengal Sati Regulation (1829), the Hindu Widows’ Remarriage Act (1856), and the Child Marriage Restraint Act (1929) reflected early efforts to address gender injustices. These reforms, while groundbreaking, often faced resistance due to their challenge to entrenched socio-cultural practices.

With independence, gender equality became constitutional obligations. Fundamental rights were inserted in the Constitution of India for guaranteeing equality (Article 14), while prohibiting discrimination on all grounds such as sex (Article 15). Besides that, the Directive Principles of State Policy stated the obligation of the State to ensure equal remuneration, education, and prevention of exploitation. 

The evolution of gender rights was further shaped by feminist movements in the 20th century, advocating for reforms like equal inheritance under the Hindu Succession Act (1956) and criminalizing dowry practices through the Dowry Prohibition Act (1961). Besides, the struggle of the LGBTQIA+ community accelerated with the sunset of two landmark judgments: NALSA v. Union of India (2014) and Navtej Singh Johar v. Union of India (2018), granting the status of persons to transgender individuals and decriminalizing homosexuality, respectively.

Constitutional Provisions for Gender Rights & Equality

The Indian Constitution provides a strong foundation for gender equality through its fundamental rights and Directive Principles of State Policy (DPSP).

Fundamental Rights

  • Article 14: Guarantees equality before the law and equal protection of the laws, emphasizing non-discrimination across all genders.
  • Article 15: Prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. Importantly, it allows the State to make special provisions for women and children to advance gender equity.
  • Article 16: Ensures equality of opportunity in public employment and prohibits discrimination on grounds of sex.
  • Article 21: Broadly interpreted to include the right to live with dignity, encompassing protection from gender-based violence and exploitation.
Gender Rights

Directive Principles of State Policy (DPSP)

  • Article 39: Directs the State to ensure that men and women equally have the right to an adequate means of livelihood and that equal pay is provided for equal work.
  • Article 42: Mandates the State to ensure just and humane working conditions and maternity relief.
  • Article 51A(e): Imposes a fundamental duty on citizens to renounce practices derogatory to the dignity of women.

Key Statutes and Provisions

For Women

  1. Protection of Women from Domestic Violence Act, 2005 (PWDVA): This act provides civil remedies for women facing domestic violence, addressing physical, emotional, sexual, and economic abuse. It offers immediate relief in the form of protection orders, residence orders, and monetary compensation.
  2. Maternity Benefit Act, 1961: Amended in 2017, this act enhances maternity leave to 26 weeks, provides crèche facilities, and ensures no discrimination against pregnant employees.
  3. Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act): The act provides a framework for addressing sexual harassment in workplaces, mandating Internal Complaints Committees (ICCs) and emphasizing accountability.
  4. Dowry Prohibition Act, 1961: Criminalizes the practice of giving and receiving dowry, addressing a prevalent cause of harassment and violence against women.
  5. The Medical Termination of Pregnancy Act, 1971: This Act provides women with the right to access safe and legal abortions under specified conditions. In 2021, the Act was amended to extend the permissible gestation period for abortion to 24 weeks in special circumstances, including cases of rape, incest, or fetal abnormalities.
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Gender- Neutral Statutes & Provisions

  1. Protection of Children from Sexual Offences Act, 2012 (POCSO Act): The POCSO Act is one of India’s most comprehensive gender-neutral laws. It addresses sexual offences against children under the age of 18, irrespective of their gender. The Act ensures that both male and female children, as well as those identifying as non-binary, are equally protected against abuse. It prescribes stringent punishments for perpetrators and provides for child-friendly mechanisms for reporting and investigation.
  2. Juvenile Justice (Care and Protection of Children) Act, 2015: The Juvenile Justice Act is gender-neutral in its approach to children in conflict with the law and those in need of care and protection. It does not differentiate based on gender and focuses on rehabilitation and reintegration, ensuring that all children are treated with dignity and equity.

Transgender Persons (Protection of Rights) Act, 2019

This landmark legislation ensures the rights of transgender individuals by prohibiting discrimination in employment, education, and healthcare. It mandates the establishment of welfare boards and provides for identity recognition through certificates issued by authorities. However, the act has faced criticism for requiring individuals to seek validation of their gender identity from the State, which undermines self-determination.

The Overlooked Reality: Men’s Rights in the Gender Equality Discourse

For centuries, gender equality has been a pillar in many progressive societies, striving towards the elimination of all established barriers and discriminatory actions that have historically robbed women of their rights. But the larger discourse has overlooked man’s vulnerabilities and rights that create an imbalance in the understanding and implementation of gender justice. Such omission results from deep-rooted stereotypes, societal expectations, as well as a narrow definition of gender equality that focuses predominantly on women’s rights. While addressing disadvantages women have historically experienced, it is also essential investigating men’s disadvantages for an equitable society. 

Men’s rights are often overshadowed by the larger movement for women’s empowerment. This neglect can be attributed to several factors:

  1. Historical Context: The gender equality movement emerged as a response to centuries of systemic oppression and inequality faced by women. In this context, men were often viewed as the dominant or privileged group, leading to the assumption that they do not face significant challenges or discrimination.
  2. Societal Perceptions of Masculinity: Traditional notions of masculinity portray men as strong, self-reliant, and invulnerable. This perception discourages men from expressing vulnerabilities or seeking support, further reinforcing the belief that men do not require rights-focused advocacy.
  3. Focus on Statistical Disparities: The focus on data highlighting women’s disadvantages in areas like education, employment, and safety often overshadows issues faced by men, such as mental health struggles, higher suicide rates, and workplace fatalities.

Key Areas Where Men’s Rights Are Overlooked

1. Mental Health and Emotional Well-being

Men face significant challenges in accessing mental health support due to societal stigmas around vulnerability. Cultural expectations often discourage men from expressing emotions or seeking help, leading to alarming statistics:

  • As per NCRB data, on an average, over the past eight years (2015 to 2022), nearly 1,01,188 men have died by suicide each year, compared to 43,314 women. The rate of suicide for men is 14.2 per 100,000 male population, while for women, it is 6.6 per 100,000 female population.

2. Domestic Violence Against Men

While the Protection of Women from Domestic Violence Act, 2005 (PWDVA) provides robust protections for women, no equivalent legal framework exists to address domestic violence faced by men. Reports and studies suggest that men can also be victims of physical, emotional, and financial abuse in intimate relationships. However, societal stereotypes often trivialize their experiences, which leads to underreporting and a lack of support structures.

3. False Allegations of Harassment or Rape

False accusations of harassment, dowry demands, or rape, though statistically rare, can have devastating consequences for men. Section 498A of the Indian Penal Code (IPC), designed to protect women from cruelty by their husbands or in-laws, is often criticized for being misused. Men falsely accused of sexual offences face reputational damage, emotional trauma, and financial burdens, with limited recourse to seek justice or repair their lives.

4. Custody Rights in Divorce

In most divorce cases, the custody of children is awarded to mothers under the assumption that women are inherently better caregivers. While this may hold true in some situations, it often disregards the role of fathers in a child’s upbringing.

Laws such as the Hindu Minority and Guardianship Act, 1956 and judicial precedents typically favor mothers, leaving fathers with limited access to their children. This bias ignores the emotional and psychological impact of losing custody on fathers and children alike.

5. Workplace Harassment and Discrimination

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act) is an important tool for protecting women against workplace harassment. However, it is limited in scope, excluding men and LGBTQIA+ individuals from its protections. Men who experience workplace harassment often face ridicule or disbelief when they come forward, leaving them without adequate support or legal remedies.

Atul Subhash Suicide: A Tragic Reflection on the Lack of Visibility of Men’s Rights

In a deeply tragic incident that has reignited discussions about men’s rights in India, Atul Subhash, a 45-year-old man from Pune, took his own life after being ordered by the court to pay ₹5 crore as alimony in an old divorce case. Subhash left behind a suicide note highlighting the overwhelming financial burden and emotional distress that led him to take this drastic step. His case sheds light on the pressing need to reexamine the often-overlooked challenges faced by men in the context of marital disputes and gender justice.

Subhash had been embroiled in a long-standing divorce case with his former spouse. The Supreme Court ordered to pay a whopping ₹5 crore as alimony, which was the tipping point for him. His suicide note disclosed an unbearable pressure that was not only on monetary grounds but also emotional. This incident isn’t an isolated one; it mirrors the plight of many men who face severe mental health challenges due to societal expectations, legal biases, and limited avenues for support.

One of the critical issues highlighted by Atul’s case is the lack of legal and institutional safeguards for men. While significant progress has been made in addressing gender-based violence against women and LGBTQIA+ individuals, the legal framework often neglects situations where men are victims. For instance, laws addressing domestic violence and sexual harassment largely exclude men from their purview, perpetuating the notion that men cannot be victims. False accusations can have a catastrophic impact on a man’s personal and professional life, as societal biases often presume guilt without thorough investigation.

On the other hand, the aspect of men’s mental health is a serious issue. Far lesser men seek help for mental issues in comparison to women. Studies suggest that men have a higher rate of suicide, and the reason for it is the societal expectations and a lack of support systems. Despite this, campaigns regarding mental health do not seem to take into accounts the hurdles men face, leaving them with no avenues for their remedial action.

Article by Manan Mishra NLU Ranchi Intern at Fasrack Legal Solutions

References

  1. Legal protections for husbands: What are men’s rights in marriage
  2. IJCRT2408302.pdf
  3. Will someone believe if a man reports an incident?
  4. Men’s Rights In India – Legal Desire Media and Insights
  5. Domestic Violence Against Men in India: A Constitutional Analysis
  6. Important Supreme Court And High Court Cases on Rights of Men And Judicial Intervention
  7. Key Legal Rights Every Woman in India Should Be Aware Of
  8. Domestic Violence Against Indian Men: 9 Facts & Stats
  9. Fight for Men’s Rights in India: Embracing Equality and Fairness
  10. Domestic Violence Against Men and Women in India: Why Blame Only Us If You Can Do It Too?
  11. The reasons for male suicides in India: What the numbers tell us
  12. Atul Subhash suicide: After asking man to pay Rs 5 crore in an old divorce case, SC lists 8 factors to decide alimony – The Economic Times

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