RIGHT TO EQUALITY viz a viz gender neutrality of sexual offenses by Avlin at LEXCLIQ

“The idea of treating every citizen as equal before the state and in the eyes of the law has been enshrined in the Indian Constitution since its adoption in 1950.”
India’s constitution has been seen as a central element for social growth with the democratic principle of equality. The concept of equality is the basis of democracy and a republic. Equality means that we are subservient to only one thing which is LAW. Equality is the basic aspect of socio-economic justice. Whereas Gender neutrality is a concept that postulates the eradication of distinction between different sexes in the drafting and execution of laws. It aims to make every citizen entitle to equal rights, for example, equal protection of the law, etc. without distinguishing on sex. As regards, sexual laws, it aims to exterminate the male-female paradigm attached to sexual crimes in Indian laws. And the sexual offence which has been focused more on has always been ‘rape’. Though the definition of rape under Section 375 of the Indian Penal Code, 1860 has been amended multiple times, it still peers with the traditional notion attached to rape wherein the victims and perpetrators are always women and men respectively. With the change in times and our societal structure, we need to reconsider the term ‘equality’ it is meaning and scope in terms of gender neutrality.
Here in this chapter reader will be focusing on the concept of equality in our constitution, its exceptions in the form of special privileges to women and children, the rationale behind such privilege and how equality and discrimination in some aspects are accepted in India. Need of the hour in the form of gender neutrality of sexual offences and what are these offences.

Article 14 of the Indian Constitution clearly states that the state/country shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.1 This law applies to all citizens and foreigners.
To be more precise; the word ‘person’ includes; companies, statutory corporations, registered societies or any other type of legal person.

Article 14 is the first and the foremost right which is guaranteed to all the persons that are the right to equality. Equality forbids inequalities, unfairness and arbitrariness. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Article 14 guarantees equality to all persons, including citizens, corporations, and foreigners.
Its provisions have come up for discussion in the Supreme Court in several cases and the case of Ram Krishna Dalmia vs Justice SR Tendolkar,2 reiterated its meaning and scope as follows. Article 14 permits classification, so long as it is ‘reasonable’, but forbids class legislation. Classification of groups of people is considered reasonable when:
1. The classification is based upon intelligible differentia that distinguishes persons or things that are grouped from others that are left out of the group, and,
2. The differential has a rational relation with the objective of the act.
In addition, the classification must be non-arbitrary.
Supreme Court in E. P. Royappa guided the arbitrariness of an act:
“Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined within the traditional and doctrinaire limits. From the positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn, enemies… Where an act is arbitrary, it is implicit that it is unequal both according to political logic and constitutional law and is therefore volatile of Article 14.”
Article 14 uses two expressions Equality before the law and equal protection of laws. Both these expressions have been used in the Universal Declaration of Human Rights.


India is a common-law nation with varied customs, a variety of religious communities and a history that goes back centuries. India’s sustained political freedoms are exceptional among the developing countries of the world; yet, given socio-economic developments, there is unprecedented misery, religious and social class-related brutality, separatism, or other social prejudices still widespread in the region. The jurisprudence behind the enactment of this Art.15 was based on the caste system largely prevalent among the followers of Hinduism in India. The ‘lowest caste’ people of society, also known as ‘untouchables’ were discriminated against and socially ostracised. During the drafting of the Indian Constitution, several constituent assembly debates took place regarding Article 15. Many of the constituent assembly members suggested providing separate public access to government facilities such as schools, wells etc. to the ‘lower caste’ members.14 However, these suggestions were overruled by the Chairman of the Drafting Committee, Dr B.R. Ambedkar, who opined that the purpose of introducing this section is to make society all-inclusive. If caste-based segregations are made, then the purpose of introducing the article itself would become redundant. Similarly, on analyses of the socio-economic status of women in society during the independence era, the enactment of special provisions for women seemed appropriate under Article 15(3). Women in India are safeguarded by the different statutes in India and they can file complaints against anyone for the infringement of their rights. Despite having equal fundamental rights given to men and females, the rights of men are not enunciated as compared to women. However, in the 21st century, with the advent of feminism and women empowerment, it would be appropriate that society readjusts itself to providing equal opportunities to all genders. Seeking special favours in a situation where we talk of equal opportunities for women may not only appear inconsistent but also to an extent hypocritical. There is no denying that discrimination against women exists even now, however, an appropriate balance has to be achieved in society. Masonry is not the answer to misogyny. Undue favours to women in areas where women are equally equipped to compete will only result in more misogynistic feelings among men and push regressive attitudes further in society. Article 15(3) recognised years of discrimination against women and sticks to achieve substantive equality for women. Constitution considers that equality can be achieved only among equals when there are unequal it will lead to injustice because if both parties are equal then only one can expect that both parties will compete properly and will get opportunities. Gender Equality between men, women and transgender is the state of equality, in case of access to resources and opportunities regardless of gender, including economic participation and decision-making. It entails the concept that all human beings, both men and women and transgender, are free to develop their personal abilities and make choices without limitations.

Gender equality means that the different behaviour, aspirations and needs of all three genders are considered, valued and favoured equally. Thus, there is a need to create an inclusive society that provides equal opportunities to all not only in letter but also in the spirit of the Indian Constitution.

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