INTRODUCTION
Traditionally, India’s legal system recognized only males and females, grounding itself in a binary classification of gender, often to the extreme of neglecting other gender identities such as those of the transgender and non-binary community. Despite taking great strides judicially and legislatively toward inclusivity, many laws-especially those concerning sexual offences-are still beholden to the binary model of male and female. New criminal laws such as the Bharatiya Nyaya Sanhita (BNS), 2023, are stirring the pot as to whether India’s legal structure is moving toward a neutral stand on gender or reinforcing the binary stereotypes. This blog attempts to peek into the present state of gender-neutral laws in India vis-a-vis new criminal laws and other relevant Acts on the one hand and landmark cases highlighting both the inadequacies and progress in the area on the other.
HISTORY
Historically, any thinking at the legislation level in India, especially under the Indian Penal Code (IPC) of 1860, would stand in the view of binaries, saying men are perpetrators of offences, and women are victims of sexual violence. For instance, Section 375 of the IPC defines rape by saying a man is committing rape upon a woman[1] and excludes any male, transgender, or non-binary victim in its ambit. Such prejudicial language reveals an entrenched patriarchal normative notion of gender roles that even the changes in social dynamics have failed to challenge.
In essence, equality before the law as guaranteed under Article 14 of the Indian Constitution[2] requires that all citizens be treated alike. However, as soundly pointed out in judicial debates, such stereotyping or cultural presuppositions tend to undermine this principle, mostly for those who are considered marginalised, such as transgender and non-binary persons [3].
NEW LAWS
The BNS was a major reform in the domain of Indian criminal justice and has replaced IPC with emerging statutes to affect the reform in July 2024. It aims to modernize the existing laws and continues to adopt gender-neutral provisions. For example, Clause 96 of the BNS replaces “minor girl” with “child” while dealing with procurement applicable to both male and female children under 18 years old. Similarly, Clause 141 addresses the import of girls or boys aged below 21 and 18 years, respectively, for the illicit sexual activity adopted without gender mention. These changes reflect the judgment of the Supreme Court in Independent Thought v. Union of India (2017)[4], in which the marital rape exception to minor wives was removed, emphasizing the need for protection of all children.
But BNS is not completely gender-neutral concerning the definition of rape either. It viewed Section 63 of the BNS as Section 375 of the IPC, still retaining its specific gender characteristic and defining rape as that committed by a man against a woman. Furthermore, it does not contain Section 377 of the IPC, which earlier criminalized non-consensual unnatural sexual acts, also such acts against men. This omission has been viewed by some as a regressive step rightly or wrongly.
OTHER RELEVANT LEGISLATION
Protection of Children from Sexual Offences (POCSO), 2012, POCSO Act is more gender-neutral than the IPC or BNS, as it describes a “child” as any person below 18 years of age, without gender specification[5].
However, the law under the POCSO Act does not extend protections to adult male or transgender victims, thus creating this disparity-while minors have legal remedies, adults often do not. For example, a minor male victim of rape could obtain justice under POCSO; there is no such provision under the BNS for an adult male victim. This stands out as a glaring gap in the current legal framework.
Transgender Persons (Protection of Rights) Act, 2019
The Transgender Persons (Protection of Rights) Act, 2019, is a milestone legislation that recognizes transgender persons as a third gender as laid down by the Supreme Court in its judgment in the case of National Legal Services Authority v. Union of India (2014)[6]. The Act prohibits discrimination and provides access to certain fundamental rights. Nevertheless, it has been criticised for making it compulsory for the person concerned to provide evidence of undergoing gender reassignment surgery so that he/she could be eligible for a change in legal identity, which is prohibitively expensive for as many transgender persons as there are. Furthermore, the Act does not afford enough protection from sexual violence to transgender individuals because, in most cases, they are left high and dry by laws based on gender, which do not cover them[7].
CHALLENGES AND SOLUTIONS
Indeed, the push for gender neutrality in law has some critics:
Stigma in Society: Male victims and transgender persons generally receive ridicule or disbelief when they approach authorities to report incidents. Gender-neutral legislation would lessen the stigma by acknowledging the reality of sexual violence, which can be inflicted on victims of either sex.
Feminist Objections: Several feminist groups are claiming that making laws gender-neutral is like watering down the already present limited remedies accessible to women in a patriarchal society and that this will allow counter-cases to be filed by the offenders.
Legislative Inertia: Legislative reforms are getting very slow, even with judicial support. The Criminal Law Amendment Bill, of 2019[8], is testimony to this fact.
Lack of Awareness: Public misunderstanding of gender diversity contributes to resistance against inclusive legislation. Awareness campaigns are essential to shift social attitudes.
Proposed Solutions:
Legislative Reform: The BNS should be rewritten in terms of gender-neutral definitions of sexual offences, thus protecting the rights of all victims and offenders, as proposed in the 2019 Bill.
Judicial Advocacy: Courts must continue to advocate for inclusivity, as done in the NALSA and Navtej Singh Johar decisions, but also concerning abuses affecting all genders.
Public Education Campaigns: Initiatives to raise awareness about gender diversity can help combat stigma and support the implementation of inclusive legal reforms.
Data Collection: There is no existing official estimate of non-female victims of sexual crimes, which hampers evidence-based policymaking.
CONCLUSION
With the POCSO Act and the recognition of gender identity as significant milestones, the Indian justice system has increasingly drifted toward gender neutrality. On the other hand, the BNS, 2023, and POSH Act[9] are still bound by a binary conception of gender and cannot extend protection to male, transgender, and non-binary victims. Through cases like Navtej Singh Johar[10] and Sakshi[11], the judiciary has shown its inclination to bear down toward inclusivity; however, legislative resistance and social prejudices remain the biggest stumbling blocks.
What is urgently needed is a balanced approach that protects marginalized groups, yet ensures justice for all genders. With progress in India, its laws must transcend binary definitions to synchronize with the disparate reality of its population, thereby serving as an agent for equality and justice for all.
Author(s) Name: V Satya Anirudh Ananda Sastry & Kritika Juneja (Amity University & Amity University)
References:
[1] Indian Penal Code 1860, s 375
[2] Constitution of India 1950, art 14
[3] Nivedita Menon, Seeing Like a Feminist (Zubaan, 2012)
[4] Independent Thought v Union of India (2017) 10 SCC 800
[5] Protection of Children from Sexual Offences Act 2012, s 2(d)
[6] National Legal Services Authority v Union of India (2014) 5 SCC 438
[7] Centre for Law and Policy Research, “The Gaps in the Transgender Persons Act, 2019
[8] Criminal Law Amendment Bill, 2019 (unpassed)
[9] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
[10] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
[11] Sakshi v. Union of India, (2004) 5 SCC 518
