INTRODUCTION
Like most other countries, India’s legal system has historically evolved in a patriarchal setting. Even though women have been at the forefront of the fight for legal protection for centuries, most legislative proposals fail to include a significant portion of the population, including males, transgender people, and non-binary persons. Gender-neutral laws protect individuals of all genders equally without bias or discrimination. This is not the same as erasing gender. The need for gender-neutral laws is growing as India’s political, social, and legal systems advance.
UNDERSTANDING GENDER-NEUTRAL LAW
Legislation that does not discriminate against people based on their gender is known as gender neutral. The wording of this legislation is inclusive and does not limit itself to the gender binary. Regardless of a person’s gender identity, they aim to provide them with the same rights, protection, and obligations.
There are now certain gender-specific rules in Indian law, particularly about marriage, domestic abuse, maintenance, and sexual offences. The premise behind most of these laws is that males are the only criminals and women are the only victims. When it comes to male, transgender, and gay victims of the same offences, this results in a legal blind spot.
RELEVANCE OF LAWS THAT ARE GENDER-NEUTRAL
- Guarantees Legal Equality
Article 14 of the Indian Constitution, which guarantees all people, regardless of gender, equality before the law and equal protection, is upheld by gender-neutral laws. [1]All citizens must have access to legal protections; they cannot be limited to any one gender.
- Covers Every Type of Victimhood
There is no gender difference in sexual harassment, domestic abuse, or sexual assault. Victims may also include men, transgender people, and non-binary people. Everyone’s unique and different experiences are acknowledged by gender-neutral laws, which also give them access to legal remedies.
- Lessens the Abuse of Laws Specific to Gender
During marital disputes, several gender-based laws, such as Section 498A IPC (dowry harassment), have been accused of being abused[2]. A more impartial, well-rounded strategy can reduce the opportunity for fabrication while still protecting real victims.
It complies with international human rights standards.
Inclusive legal systems are prescribed by international norms, such as the UN Human Rights models. Australia, the UK, and Canada have already moved towards gender-neutral legal terminology, especially when it comes to sexual offences.
- Promotes Inclusivity and Social Justice
Laws that are gender-neutral dispel patriarchal assumptions, which hold that women are always the victims and males are always the aggressors. A more inclusive and just society results from such laws, which recognize the rights and dignity of all genders.
NEED OF GENDER-NEUTRAL LAWS IN INDIA
- Constitutional equality is the primary argument in favor of gender-neutral law. Every person is guaranteed equality before the law and equal protection under Article 14 of the Indian Constitution. Therefore, laws that limit protection to certain genders may be interpreted as violating this right.[3]
- Furthermore, the state is prohibited from discriminating against any of its residents based on their sex under Article 15(1). The goal was never to justify legal exclusion against other sexes, even if Article 15(3) permits affirmative discrimination against women and children as well.[4]
- Legislation that is gender-neutral promotes equality, dispels myths, and recognizes that vulnerability cannot be attributed to a particular gender. The misuse of gender-specific laws, which is a common issue in the case of Section 498A IPC, which is sometimes accused of being abused in marital situations, may also be prevented by gender-neutral legislation[5].
- The Indian Penal Code, 1860 (IPC), particularly Sections 354, 375, and 376, has long been criticized for its gender-specific approach to sexual offences. [6]These sections operate under the assumption that the perpetrator is always male and the victim is always female. While this framework was historically rooted in the urgent need to protect women from patriarchal violence, it fails to acknowledge the sexual violence experienced by male and transgender victims.
- For instance, Section 375, which defines rape, exclusively recognizes women as victims, thereby excluding men and trans persons from its protective ambit[7]. Even after the Criminal Law (Amendment) Act, 2013, which was enacted in the wake of the Nirbhaya case and introduced significant reforms, including broader definitions of sexual assault and new forms of sexual offences, the law remained gender-specific.[8]
- In contrast, many countries such as Canada, Australia, and the United Kingdom have enacted gender-neutral laws on rape and sexual assault, acknowledging that any individual, regardless of gender, can be a victim or perpetrator of sexual violence. These legal frameworks are more inclusive and better aligned with the realities of sexual crime in the modern era.
- With the recent introduction of the Bhartiya Nyaya Sanhita, 2023 (BNS)—which is set to replace the IPC—there was anticipation for reform in this area. However, the BNS retains the same gender-specific language in its provisions related to rape and sexual offences.[9] While the Sanhita introduces various changes across criminal law, it does not adopt a gender-neutral approach to sexual violence, thereby continuing the legal invisibility of non-female victims.
- This persistent legal gap not only hinders access to justice for male and transgender survivors but also reinforces gender stereotypes about victimhood and criminality. As Indian society evolves, there is an urgent need for criminal law reform that embraces gender neutrality in its true sense, ensuring equal protection and remedy for all victims, regardless of gender identity or sexual orientation.
DOMESTIC VIOLENCE AND THE GENDER BIAS
The Protection of Women from Domestic Violence Act, 2005 (PWDVA)[10]provides a civil remedy to women facing abuse within the household. However, it does not extend the same protection to men or transgender individuals. The assumption that only women face domestic violence overlooks the reality of abuse in same-sex relationships, or situations where men or gender-diverse persons are victims.
The Delhi High Court, in Dharampal v. UOI[11], observed that PWDVA is not unconstitutional merely because it excludes men, but it also noted the importance of having a broader discourse on abuse that includes male victims. There is an urgent need to either enact separate legislation or broaden the existing law’s scope to reflect the diversity of modern households.
- Encourages Accurate Data and Research
When laws are gender-specific, incidents involving other genders go unreported or unrecorded, leading to a skewed understanding of crime and victimhood. Gender-neutral laws promote comprehensive documentation and research, helping in better policymaking. - Fosters a Culture of Empathy and Fairness
Moving away from binary notions of gender fosters sensitivity and awareness in legal institutions like the police, judiciary, and legal aid systems. It creates a culture where justice is not assumed but investigated and delivered impartially.
TRANSGENDER RIGHTS AND THE LEGAL GAP
The Transgender Persons (Protection of Rights) Act, 2019 [12]It was a positive step in recognizing the rights of trans individuals. However, the Act has been criticized for its vague definitions, limited enforcement mechanisms, and for failing to integrate with broader criminal law frameworks. There is no clarity on how transgender individuals can seek justice under gender-specific laws, especially in cases of rape, harassment, or domestic violence.
The Supreme Court’s judgment in NALSA v. Union of India[13], affirmed the right of individuals to self-identify their gender. It also emphasized the need for a legal regime that respects and protects the rights of all gender identities. However, the implementation of this ruling in terms of legislative reform remains slow.
JUDICIAL APPROACH AND DEVELOPMENTS
Indian courts have started recognizing the need for inclusivity. In X v. State of Uttarakhand[14], the Uttarakhand High Court acknowledged the emotional and psychological trauma faced by queer individuals. Similarly, the Madras High Court, in a landmark 2021 ruling, issued guidelines for the police and judicial officers to avoid stereotyping the LGBTQIA+ community.[15]
Nevertheless, in the absence of legislative reforms, these progressive judgments serve only as moral guides and lack enforceability. Codified gender-neutral laws would give these judicial advancements the strength of permanence.
CONCLUSION
India must move towards a more inclusive legal framework that reflects the diversity and complexity of its society. Gender-neutral laws are not a denial of women’s rights but an expansion of legal protection to all marginalized genders. As societal awareness grows, so must the law evolve to reflect a more accurate picture of victimhood, agency, and justice.
Future amendments to the Indian Penal Code, Criminal Procedure Code, and personal laws should adopt gender-neutral language, define offences in terms of acts rather than identities, and ensure equal protection for all. A comprehensive review by the Law Commission of India or a Parliamentary Committee could be the first step in this transformative journey.
India’s constitutional promise of justice and equality demands that legal protections be inclusive and non-discriminatory. True justice is not served by favoring one group over another, but by ensuring that no individual is left without recourse, regardless of gender.
Author(s) Name: Nikita Agarwal (Bhartiya Vidyapeeth deemed university in Delhi)
References:
[1] Constitution of India 1950, art 14
[2] Indian Penal Code 1860, s 498A
[3] Constitution of India 1950, art 14
[4] Constitution of India 1950, art 15(1)
[5] Indian Penal Code 1860, s 498A
[6] Indian Penal Code 1860, ss 354, 375, 376
[7] Indian Penal Code 1860, s 375
[8] Criminal Law (Amendment) Act 2013
[9] Bharatiya Nyaya Sanhita 2023
[10] Protection of Women from Domestic Violence Act 2005
[11] Dharampal v Union of India (2017) SCC OnLine Del 11189
[12] Transgender Persons (Protection of Rights) Act 2019
[13] National Legal Services Authority v Union of India (2014) 5 SCC 438
[14] X v State of Uttarakhand (2021) SCC OnLine Utt 495
[15] S Sushma v Commissioner of Police (2021) SCC OnLine Mad 2333
