A very articulate article that appeared today in the Dhaka Tribune of Bangladesh! - Aditya B
*Equality in the Eye of the Law! * Barrister Farzana Hussain Gender discrimination and gender inequality in the Penal Code of 1860 Article 7 of the Universal Declaration of Human Rights (UDHR) states that, “All are equal before the law and are entitled without any discrimination to equal protection of the law.” In simpler words, the law must treat everyone equally regardless of their race, gender, gender identity, national origin, colour, ethnicity, religion, disability, or other characteristics, without privilege, discrimination, or bias. Is legal egalitarianism or legal equality a myth or a fact? At the least, gender inequality is very much present in our justice system. It’s high time to unveil the true nature of gender equality in the context of Penal Code of 1860. Gender discrimination or gender inequality or sexism refers to unequal treatment or perceptions of individuals based on their gender. Sexist attitudes may stem from traditional stereotypes of gender roles and may also include the belief that a person of a certain sex is intrinsically superior to another. The provisions of the Penal Code relating to sexuality, procreation and marriage are the areas which are most affected by the private-public dichotomy and the resultant discriminatory application of law to men and women. For this article, gender equality would be questioned in the context of three important yet mostly unnoticed sections of the Penal Code: Sections 8, 497 and 377. In section 8 of the Penal Code, the general explanations mention that the pronoun “he” and its derivatives are used for any person whether male or female. However, section 10 declares that the word “man” denotes a male human being of any age and “woman” denotes a female human being of any age. So, “he” does not only mean male, it may mean female. Again, “he” includes “she” but “she” does not include “he.” On top of this, Usage of “he” or “man” in a section, therefore, determines whether it is applicable to both the male and female, or it applies to either male or female. “He” refers to both male and female whereas, “man” refers to only male, not female, which is discriminatory. Section 8 may be amended as the pronoun “he” and its derivatives are used for male and the pronoun “she” and its derivatives are used for female. Otherwise, a common word “person” can be used referring to both male and female. Section 497 of the Penal Code deals with adultery and its consequence. This section states that, “whoever has sexual intercourse with … the wife of another man, without the consent or connivance of that man … shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.” Hence, a case of adultery cannot be filed against a woman even if she gets involved in an extra-marital relation. A case under this section can only be filed against the male with whom she enters into such a relationship regardless of his marital status. Though the men’s rights activists like to portray this as pro-women and anti-men provision in the Penal Code, however, section 497 “is not” in favour of women at all. Primarily, this section was enacted solely and exclusively to protect the rights of the husbands. Firstly, “Without the consent of that man” indicates that wives are treated as property to their husbands. Adultery is considered as a crime against the husband, whereas the wife is portrayed as victim. Even if a man is having an affair with a married woman, it will not be treated as a crime under this section, if the husband of the woman concerned, consents to it or if the affair is carried out with his connivance. And secondly, women cannot file a case of adultery against their husbands under this section, even if he is having an extra-marital affair with a married woman. Whereas, husbands can, with the help of this section, prosecute his wife’s lover and can also file for a divorce from his wife on the ground of adultery. In Britain and many other countries, adultery has already been decriminalised and can only be used as a ground of divorce under family law. We may follow their footstep and make adultery, only an available ground for divorce, both to husband and wife. Finally, section 377 of the Penal code enunciates unnatural offences. This section narrates, “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to 10 years, and shall also be liable to fine.” Thus, section 377, introduced during the British rule of India, criminalises sexual activities “against the order of nature,” arguably including consensual same-sex acts. Though ostensibly applicable to heterosexuals and homosexuals, Section 377 acted as a complete prohibition on the consensual penetrative sexual acts engaged in by homosexual men, thereby criminalising their sexual expression and identity. We must not forget, the question of the rights of sexual minorities is central to the question of human rights. The right to equality and non-discrimination guarantee provided by the United Nations Charter, the Universal Declaration of Human Rights and Human Rights treaties, applies to all people, regardless of sex, sexual orientation and gender identity or “other status.” The constitution of Bangladesh, as originally drafted, also clearly protects the rights of equality and non-discrimination. But sexual orientation is not an enumerated ground of prohibited discrimination under our constitution. As a consequence, this section of Penal Code prevails today. However, the Government of Bangladesh has recently taken a landmark decision to recognise rights of intersex people known as “Hijras” and approved them as third gender along with male and female. So, it may be the right time to think out of the box with regard to reframing section 377 of the Penal Code of Bangladesh. On a concluding note, centuries long distinction between what constitutes the notion of “men” as opposed to “women” is brought to an acid test in recent time. We ought to rethink if we have to reimagine gender as a negotiable term whose meaning is relative and situational rather than constant and neutral in the socio-legal context. This is how we all, I repeat, “all” will be equal in the eye of law, not only in phrases but also in reality. http://www.dhakatribune.com/juris/2014/sep/11/equality-eye-law -- -- ADITYA BONDYOPADHYAY Development Sector Consultant Advocate (Regd. No. F-218/192 of 1997, Bar Council of W.Bengal, India) Website: http://adityabondyopadhyay.webs.com/ ================================ Notice to all recipients: Communication not intended for you but reaching you inadvertently needs to be treated as confidential and destroyed or deleted immediately. 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