This article has been replaced by Debapriya Biswas. The article explores the meaning and relevance of gender neutrality before diving into its impact on the current legal scenario and whether India has any such gender-neutral legal provisions as of now.
It has been published by Rachit Garg.
Table of Contents
Introduction
While the doctrine of the Rule of Law establishes that everyone shall be equal before the law, it is not quite so in practicality. Since society itself is quite biased, many communities have been marginalised for centuries. Legal provisions had to be introduced in their favour to protect them from further harm while giving them an equal footing with the other communities by levelling the playing field. This can be seen in the case of women, for whom gender-specific laws are made in almost all the nations around the globe.
However, with the changing times, gender-specific laws are becoming more and more restrictive. Thus, to counter it, gender neutrality is needed to promote further equality.
Origin behind gender-biased laws
The origin of law takes root within social customary practices in the ancient civilizations. These practices soon turned into strict rules to regulate the people within the community before evolving into laws of the land that prescribed punishments for those not following them. Many personal laws relating to marriage started as mere customs and traditions followed by certain communities for years before being acknowledged and followed as legal provisions. Meanwhile, legal provisions against the customs of the Sati system and caste system were framed as per the needs of society and its people.
In essence, one can say that laws have quite a social and historical background, which stands to be true. This is also one of the main reasons why many legal provisions are gender-biased — especially in India.
With the patriarchal mentality still running deep within the customs and traditions of India, many crimes are targeted more towards women than any other gender. Thus, to address such adversity, many legal provisions in India have been framed in a manner that can uplift the marginalised gender.
These legal provisions and policies, while discriminatory in nature, are placed to protect the genders which are most vulnerable to such crimes and social injustices; thus, they are known to be called ‘protective discrimination.’ Such policies can be commonly seen in the form of reservations as well as other more ‘biased’ laws, such as the Protection of Women from Domestic Violence Act of 2005, the Maternity Benefit Act of 1961, and the Dowry Prohibition Act of 1961, among many others.
However, with the changing times, the needs of society are also changing; what was protective before is slowly becoming restrictive now as many cases arise that challenge the very concept behind such gender-specific laws.
Thus, to counter such restrictions, laws should be framed in such a manner that they are gender-neutral in nature and can be adapted to any individual case without creating a bias against the victim or the perpetrator only because they are of a specific gender.
Meaning of gender neutrality
To better understand the concept of gender neutrality, let us first dive into the concept of gender and what exactly it stands for.
While one may think that the meaning of gender is equivalent to their biological sex, it is not quite so. Gender, or gender identity, as it is termed by many, is a term used to identify how an individual expresses themselves, which can be different from their biological sex.
Biological sex is usually referred to as the assigned gender at birth, which can be male, female, or intersex. However, gender identity, or gender, is the manner in which an individual expresses their personal sense of gender, which is not dependent on their biological sex.
In fact, gender is often referred to as a social construct or a label rather than a biological fact; such as blue being the colour of boys while only girls shall wear pink. Or only girls can have long hair, while boys only look suitable in short hairstyles. The list goes on, and everyone may have come across at least one such stereotype or social construct that society usually poses on certain genders.
Based on such societal constructs, some people connect with the pink part, while others connect with the blue. Then there are some that connect with an entirely different colour of their own, such as orange, yellow, or red. Since everyone’s personal sense of gender and its expression can be different from one another, the concept of gender identity lies on a spectrum that is not only restricted to males and females.
The term ‘non-binary’ is used to signify people with different gender identities than just males or females, with the transgender community being a part of this term, as they are the people who identify with a gender that is often opposite to their biological sex.
The term gender neutrality, on the other hand, refers to the practice of using terms that do not distinguish based on one’s gender identity or sex. In simpler terms, it is the etiquette of avoiding distinctions of language, activities, laws, policies, etc. based on the gender identity or sex of any individual with already formed prejudice or preconception.
In a nutshell, this term and the associated movement around it try to establish a system that does not restrict an individual merely based on their gender. The most common example can be seen through the usage of the pronoun ‘they’ instead of ‘he’ or ‘she’ or the usage of gender-neutral terms like ‘people’ and ‘other person’ instead of ‘man’ and ‘woman’ in many academic papers and articles.
Such gender-neutral language can help represent people with different gender identities and sexual orientations, as well as bring gender inclusivity into the legal provisions that are quite needed in the current times.
The usage of such gender-neutral language can also help promote equality among all genders without any bias or any separate introduction of legal provisions to do the same. In countries like India, where equality is still a work in progress, gender-neutral language in its legal provisions can be quite beneficial, as will be discussed in the next few sections of the article.
Need for gender neutrality in India
As touched upon earlier, gender neutrality is a concept that can be beneficial to the legal system of any country since it aims to provide equal protection to all genders without any distinction based on prejudice or preconceptions. Simply introducing gender-neutral laws can change the application and interpretation of the law a lot. Currently, while most of the Indian legal provisions are applied to all genders, there are many that are specifically framed to assume the gender of the victim as well as the offender.
These gender-specific laws, let it be laws on sexual assault, domestic violence, dowry death, etc., are protective for one gender, that is, women. They were framed to tackle the need of the time, and while the need still persists, the issue that arises due to their gender-specific framing is that the purview of protection of the law itself decreases.
In simpler terms, by assuming the gender of the victim and the perpetrator of a crime beforehand, the law is limiting its scope by dictating who can do the crime. Such limitations can result in many cases of a similar nature being ignored and going unreported only because the gender of the victim, the offender, or both differs from what the legal provisions provide for.
In addition to that, such gender-specific laws also create the misconception that the victim is always a woman, which has led to their widespread misuse. Many false cases of domestic violence or dowry have been reported to be lodged against the man and his family, resulting in malicious prosecutions that have lasted for months, if not years. K. Srinivas v. K. Sunita (2014) and Mamta v. Pradeep Kumar (2023) can be held as examples of such cases where, in both cases, the wife was found to be harassing the husband and his family with false complaints of domestic abuse with no legitimate evidence. Based on such harassment, the husband had filed for divorce on the ground of mental cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955, which was allowed and decided in the favour of the husband in both cases.
Social perspective
With patriarchy still running deep within the roots of India, preconceptions like men are stronger than women are more common than not. Such preconceived notion leads to the belief that men cannot be victims of sexual assault or harassment, which leads to discouragement in official reporting of cases where such does happen. Even when cases with male victims are reported, they tend to be less believed or even investigated, especially in cases of adult male victims.
The situation becomes even more complicated if the perpetrator is a woman. In such a scenario, not only is the male victim discredited based only on their gender but also ridiculed for behaving in a ‘feminine’ manner or lying for attention with the assumption that the victim enjoyed being assaulted or harassed by the female perpetrator. In fact, the complete unawareness of the concept of men being raped or harassed by women is so widespread that the victim himself may not realize the situation. And if they do, such disregard may even cause him to doubt himself.
Moreover, homosexuality is still considered taboo amongst the public, despite being decriminalised for a good few years. If a man is sexually harassed or assaulted by another man, then it can be wrongfully interpreted as him being a homosexual and result in the ostracization of the victim, along with the unjustified ridiculing and shaming that may follow. This results in the male victims hesitating to disclose their grievances to anyone, let alone attempt to seek justice.
On the other hand, even if we take the case of both the victim and the perpetrator being women, such crimes would still be disregarded or go undetected due to such instances differing from the ‘traditional’ definition and notion of rape, which assumes that rape can only be committed through forceful penile-vaginal intercourse. Due to this biased assumption, victims of such situations would not be believed and might even be ridiculed or made to doubt their own minds.
Thus, it is not only the male victims who suffer through such disregard and scrutiny due to a lack of gender neutrality but also the female victims. Framing legal provisions in a more gender-neutral manner can be beneficial for all genders, including transgender people.
Legal perspective
Despite the significant progress India has made towards gender equality in the past few years, there are still many issues that persist that are not resolvable by making provisions solely to protect one gender. There is no denying that the concept of protective discrimination has helped a lot in uplifting the marginalised communities of society, but it is high time to take the next step towards gender equality by framing our laws in a more gender-neutral manner.
While some customs and laws may still remain gender-specific, such as the provisions against the Sati system or even the dowry system, other laws such as family law, civil law, and criminal law may benefit a lot from a more gender-neutral stance. It would not only make Indian legal provisions gender inclusive for all types of gender identity but also avoid the prejudice that may result due to the usage of gendered pronouns.
The system of ‘default’ genders in criminal and family laws limits the scope of application by creating a generalisation. This generalisation, in turn, results in the harm to those who are victims of cases differing from the ‘norm’ that is mentioned under the law and precedents. Thus, to counter such generalisation, there is a need to address through terms that do not distinguish gender; such as the usage of the pronoun ‘they’, as well as the usage of terms such as ‘people’ and ‘other person’ instead of gender-specific terms.
Usage of such terminology, especially in criminal legal provisions, can prevent the disregard of a lot of crimes merely on the basis of the gender of the parties involved. Specifically, in cases of sexual harassment and assault, where the offender and the victim are assumed to be male and female, respectively, by default. Thus, we are completely ignoring transgenders who identify by other pronouns, as well as male victims and female offenders.
Currently, Section 375 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) states the definition of rape or sexual assault, which has gone through many amendments to be inclusive of what may be identified as ‘rape’. However, while the definition has been framed to accommodate the changing times and its needs, it has still failed to protect anyone beyond the female victims and only from male offenders due to its rigid gender-specific language like ‘A man is said to commit rape…’
Despite the decriminalisation of homosexuality after the case Navtej Singh Johar v. Union of India (2018), the concept of sexual assault or rape by the same gender offender still seems to be a foreign concept as per the literal interpretation of Section 375 of the IPC. Ironically, while the IPC makes rape gender-specific, the POCSO Act protects children from sexual abuse regardless of their gender. In a nutshell, a minor male rape victim may get justice, but not an adult one, under the Indian legal system.
In addition to that, there is no provision criminalising marital rape in India only due to the fact that the perpetrator of rape is the victim’s husband. While it can be held as a ground for divorce under Section 13 (1) (ia) of the Hindu Marriage Act, there is no actual remedy beyond a divorce for such a heinous crime. In fact, even with divorce as the only remedy for marital rape, it can only be opted by women as a ground for divorce since the prejudice still persists that the victim of marital rape can only be the wife and not the husband.
Meanwhile, in family law, many personal laws on marriage, divorce, and adoption are still rooted in outdated beliefs that are often discriminatory in nature. This includes the belief that marriage can only be legalised between a ‘biological’ man and a ‘biological’ woman, which completely disregards not only the transgender community but also the same-sex queer couples.
In addition to that, many legal provisions dealing with succession and inheritance, such as the Hindu Succession Act of 1956, show a glaring bias towards male heirs. Even in the case of the inheritance of the wife, the legal heirs of the husband are given preferential treatment before the maternal family of the deceased wife, as per Section 16 of the previously mentioned Act. This is also the case for the Muslim personal law that is governed by the Muslim Personal Law (Shariat) Application Act of 1937, since it also discriminates heavily against women in the name of customs and traditions.
With such preferentially biased laws and skewed societal norms, there is a need for the introduction of gender-neutral laws to not only protect the people aggrieved by the gender-biased treatment but also to educate the general public about the same.
Judicial view on gender neutrality
The Indian Judiciary has acted as the most active advocates as well as critics of gender neutrality for quite a few years. With its progressive interpretations of the Constitutional philosophy, many judgements like the National Legal Services Authority v. Union of India (2014), where the rights of transgender were acknowledged as the third and separate gender, as well as the Navtej Singh Johar case, where homosexuality was decriminalised by the Supreme Court in 2018, have been made.
While this was not the first instance where the judiciary stepped up to promote gender equality, this is one of the more significant ones that opened a completely new arena in the Indian legal system, where previously the concept of gender or the love between them did not extend beyond a man and woman together. The concept of gender neutrality was pushed for even more after this development, given how many personal and family laws are distinguished based on the gender of the partners, as mentioned earlier.
Gender neutrality in legal provisions for Marriage
To tackle this gender-based distinction, the Supreme Court also formulated a Constitutional Bench to hear the petition filed for legalising same-sex marriages in the case of Supriyo v. Union of India (2023).The main arguments that were raised against this were the social instability, citing that India was not yet ready for such laws and that it may be against the culture that India stands for.
On the other hand, the arguments in favour of same-sex marriage contended that not allowing such marriages goes against Article 14 and Article 21 of the Indian Constitution, as well as several other precedents like Shakti Vahini v. Union of India (2018), in which the Supreme Court held that every adult has the basic right to choose whomever they wish to marry.
There were also many contemplations on whether a completely new and gender-neutral provision should be introduced for same-sex marriages. Many people even contended that maybe same-sex marriages can be legalised under the provisions of the Special Marriage Act of 1954, such as Section 4, if amended to be more gender inclusive.
However, as held by the Supreme Court in its recent judgement on 17 October 2023, legalising same-sex marriages is not something in the hands of the Judiciary since they cannot interfere with the workings of the Legislature. The Judiciary cannot make law or read the wordings differently than its intention. It can only interpret the law, not make the law. While the Court recognised that the right to marry or enter a union cannot be restricted on the basis of sexual orientation, the Judiciary cannot interpret law beyond its wordings. Thus, the broader interpretation of the Special Marriage Act to include same-sex marriages is out of the scope of the Judiciary’s power.
The Court urged the Centre to form a committee to address the concerns of same-sex couples and asserted that the Legislature needs to enact a law regarding same-sex marriages to address gender equality in marriages. In addition to that, the Court also asserted that unmarried couples, including queer couples, cannot adopt children. This ruling was asserted on the view that joint adoption without any legalised marriage is against the laws prescribed.
Thus, in a nutshell, India is still quite far away from legalising same-sex marriages despite the Judiciary supporting the ideology but lacking any actions behind the words.
Gender neutrality in rape laws
As mentioned earlier, this was not the first case where the judiciary talked about gender equality and neutrality. One of the very first cases where gender neutrality and the inclusivity of other genders were brought up was the case of Smt. Sudesh Jhaku v. K.C.J. (1996), where the Delhi High Court highlighted the need for protection of male rape victims under the IPC. The Court iterated that male victims were owed the same rights and protections as female victims for the same crime, without any distinctions to be made on the basis of their gender.
However, there were also cases like Anuj Garg v. Hotel Association of India (2008), where the judiciary stepped against the ideology of gender neutrality. In this case, the Supreme Court held that a woman cannot commit or be accused of sexual harassment since its legal definition at the time only restricted men to being convicted as the perpetrator. It was not until 2013 that the definition of sexual harassment was made more gender-neutral, allowing the purview to extend beyond the victim being female and the offender being male.
Similarly, in the case of Priya Patel v. State of Madhya Pradesh (2006), the Supreme Court held that under the purview of Section 375 of the IPC, only a man can commit rape and not a woman. Thus, as was in the present case, a woman cannot be convicted for gang rape under this Section no matter how much her contribution was towards such a heinous crime.
One can clearly observe the stark contrast between the judgements, where one talks about gender neutrality for the protection of male victims while the other reinforces the traditional ideology that only a man can commit rape or harassment and not a woman. There is a need for amendments in the definition of a few gender-specific laws, such as rape and domestic violence, to make them more inclusive for the protection of the victims as well as to hold every perpetrator accountable.
In fact, the definition of rape has been amended quite a few times earlier, with the most significant one being in the Criminal (Amendment) Act of 2013, which classified all types of penetration, let it be vaginal, oral, anal, etc., as sexual assault. Earlier, only penile-vaginal penetration was classified as rape. This amendment was brought in after the landmark judgement of Mukesh v. State for NCT of Delhi (2012), or the Nirbhaya case. Similarly, another amendment is needed to introduce gender-neutral language in the Indian criminal laws.
In another case, Sakshi v. Union of India (1997), the Supreme Court referred the matter concerning male rape victims and the gender-neutral application of laws to the Law Commission, which later found its way into the Law Commission’s 172nd Report. It eventually led to the introduction of the Criminal Law Amendment Bill of 2012 in the Lok Sabha, which was marked as a significant development for gender-neutrality in India. This Bill planned to enact more gender-neutral language for gender-specific laws like rape, sexual harassment, and domestic violence but was halted at that stage due to various issues.
With a similar agenda and goals, the Criminal Law Amendment Bill of 2019 was also attempted to be enacted with the aim of acknowledging and empathising with both transgender and male sexual assault/harassment victims. We will cover such gender-neutral Bills and policies in the next part of the article.
Current Indian provisions on gender neutrality
As mentioned earlier, India does not have a designated or specific Gender Neutrality Bill. However, despite that, most of the Indian legal provisions apply to all genders, and there are many legal provisions and policies advocating for gender equality as well as neutrality. Some of these provisions include:
Constitution of India
The Constitution of India (1950), while not explicitly providing for gender neutrality, covers many such provisions that promote equality while attempting to eliminate any discrimination based on religion, race, caste, place of birth, sex, or any of them. However, there are also provisions under the Indian Constitution that allow gender-specific policies to be framed for the uplifting of the marginalised genders.
Fundamental Rights
Article 14 of the Indian Constitution lays down the provision for equality before the law, which is based on the doctrine of the Rule of Law. According to this Article, every person is equal in the eyes of the law and shall have equal protection under such law within the territory of India. This fundamental right can be invoked by any person within Indian territory, regardless of whether they are a citizen or not. However, reasonable classification based on rational nexus and intelligible differentia is permitted. In simpler terms, any differentiation based on fair and reasonable grounds with a rational explanation behind such classifications shall be held legal and constitutional.
Furthermore, since the Article talks about equality before the law and equal protection under such laws, it can be interpreted to advocate for the right to equal treatment in similar situations regardless of the gender or sexual orientation of the individual. This shall be imposed for both the rights and duties conferred.
In the landmark judgement of the NALSA case, the Supreme Court recognized the adversities faced by the transgender community due to the non-recognition of their gender. The Court highlighted how this discrimination and prejudice based on gender is violative of Article 14 as well as Article 21 since it directly affects their dignity and personal liberty.
The Court held that the exclusion of transgenders from Indian policies and legal provisions denies them equality before the law and the equal protection of the law as conferred on the other genders. Such exclusion results in widespread discrimination against the transgender community, which could only be resolved by proper accommodation in the law through gender-inclusive language.
On the other hand, Article 15 of the Constitution prohibits discrimination in any manner, let it be on the grounds of religion, race, caste, place of birth, sex, or any of them. However, it also empowers the State under clause (3) to make special policies and provisions for the upliftment of the vulnerable sections of society, including women.
One may wonder if it is equality when the State is empowered to frame specifically favourable laws for some sections of society. Many arguments were also raised, questioning whether Article 15(3) is against equality before the law.
This question was answered through many judicial precedents, the most recent of which is Paramjit Singh v. State of Punjab (2009), in which it was held that the policies for the upliftment and protection of a certain gender or oppressed section of society are not discriminatory against the rest of society. They simply protect the interests of those who have been discriminated against and oppressed for far too long.
However, as held by the Supreme Court in the case of M.R. Balaji v. State of Mysore (1963), the interests of the weaker and marginalised sections of society should also be adjusted alongside the rest of society. Protective discrimination should not extend to preferential treatment.
Article 16 of the Indian Constitution deals with the fundamental right to equality in the context of employment. This provision specifically deals with public employment, mandating the State to provide equal opportunity to every citizen for the appointment or employment of any office under it with no discrimination except the required qualifications for the office or post. The selection can be done based on merit and qualifications but not on the grounds of religion, race, caste, sex, descent, place of birth, etc.
While not directly dealing with gender neutrality, Article 16 still ensures that there is no discrimination regarding employment in the public sector only due to one’s gender identity or sexual orientation. This makes the provision gender inclusive in nature.
Directive Principles of State Policy
Meanwhile, Article 39(a) of the Constitution states that every citizen of India, regardless of their gender or sex, has the right to adequate means of livelihood. Every individual has the right to get equal pay for the same or similar work done. Based on this Article, many legislations have been enacted to ensure gender equality as well as protection, especially in the context of livelihood and employment. Some of these provisions include:
Lastly, Article 42 of the Constitution empowers the State to make legal provisions for securing a proper working environment and conditions for women during maternity. Based on this Directive Principle, the Maternity Benefit Act of 1961 was enacted.
Beyond this, any situations or circumstances that are not covered by the above-mentioned Articles will be examined in light of Article 14.
Transgender Act, 2019
The Transgender Persons (Protection of Rights) Act of 2019, or the ‘Transgender Act’, is a piece of legislation that was enacted with the aim to recognize the rights of the transgender people and to establish provisions prohibiting discrimination against them. The Act also aimed to establish the National Council for Transgender Persons under Section 16, which would act as an advisor for the Government while framing policies or schemes addressing transgender issues.
The Transgender Act was passed with the intention of bringing gender equality by prohibiting discrimination against transgender people and providing them with equal opportunity as the other genders. However, the Act was hardly able to implement that intention effectively.
The Act, while it could be claimed as a good attempt, still failed to recognize and address the socio-legal issues faced by transgender people, which went beyond just discrimination. The Act specified that only after the registration of proof of gender reassignment surgery can a transgender person legally change their identity, which can be quite challenging in cases where transgender people do not have enough income to do so. It also fails to recognize that not all people who identify with the other gender may want such intrusive surgery on their bodies.
Furthermore, while the Act empowers the State to enact welfare policies for transgender people, there has been no such enactment or even clarity in regard to how such policies shall be implemented.
In addition to that, the Transgender Act also fails to outline the penalty for discrimination against transgender people under its provisions, despite it being one of the major objectives of the Act. In fact, even in cases of sexual offences against transgender persons, the penalty is given in the form of imprisonment for no less than six months, which could be extended to two years at most. Further fines could be included in the penalty as well, as prescribed by the Court.
In comparison to the provisions for sexual assault against women under the IPC, this penalty is significantly less. Section 375 of the IPC lays down the penalty for rape in the form of imprisonment for no less than seven years, which could extend to life imprisonment along with a hefty fine.
As said earlier, while an attempt was made with the Transgender Act, a lot still needs to be worked on to improve the glaring disparity between the genders that even the legal provisions showcase at times.
POSH Act, 2013
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, or the ‘POSH’ Act, is a legislation that was enacted with the aim to address the issues faced, especially by women employees, in their workspace — specifically the issue of sexual harassment and inappropriate behaviour.
This Act was formed on the basis of the ‘Vishaka Guidelines‘ given by the Supreme Court in the landmark case of Vishaka v. State of Rajasthan (1997), which was the first case to highlight the issues faced by women in workplaces and the lack of remedy against such harassment. These guidelines, as well as the resulting Act, were drawn on the principles of equality given under Articles 14 and 15 of the Indian Constitution, along with other international conventions like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) that India is a part of.
As per the principles and guidelines that it is based on, the POSH Act defines the term sexual harassment at the workplace while also criminalising it. The Act also provides for the establishment of Internal Complaints Committees (ICC) that can handle such matters delicately and sincerely.
However, while the Act may seem more gender-specific with a heavy emphasis towards the harassment faced by women employees, many provisions under the POSH Act are gender-neutral in their application and can be interpreted as such for employees regardless of their gender.
Many provisions under the POSH Act, such as Section 14, which deals with the punishment of false evidence and malicious complaints, are gender-neutral in their terminology and protect the party from being falsely implicated. It also emphasises the obligation of the employer to prohibit workplace harassment and prevent it from happening further once discovered.
The Act also establishes a clear complaint mechanism to provide a fair trial and hearing for all the parties involved. Any non-compliance with its provisions would result in the employer paying for damages to the victims and, in the worst case scenario, revocation of their business licence.
POCSO Act, 2012
The Protection of Children from Sexual Offences Act of 2012, or the ‘POCSO’ Act, is a legislation enacted with the aim to protect children under the age of majority from sexual abuse and harassment. Its provisions cover a variety of offences including rape, pornography, harassment, and assault.
The language of the Act is gender inclusive, since it aims to protect children from exploitation regardless of their gender identity or sexual orientation. Section 2(1)(d) of the POCSO Act defines the term ‘child’ with a gender-neutral stance, allowing the protection of even minor males from sexual assault and harassment that even adult males don’t have explicit remedies for.
As held by the Delhi High Court in the case of Rakesh v. State of NCT of Delhi (2023), the POCSO Act is applicable to children of all genders, and claiming that it is being misused due to its gender-inclusive terminology is misleading. In the present case, the Applicant was accused of sexual assault and criminal intimidation of a minor girl who was merely seven years old at the time of the crime. The Applicant argued that he had only attempted to get his money back from the father of the victim (the complainant) by pressuring him and keeping a gun on his minor daughter’s shoulder. He contended for the testimony to be re-done before the Court.
The Delhi High Court found the wording of the petition insensitive and dismissed the plea for re-examination of the victim as a witness, stating that not only would it be a painful recollection for the minor girl but also not seemingly needed.
Criminal Law Amendment Bill, 2019
The Criminal Amendment Bill of 2019 is one of the most prominent attempts to introduce gender-neutral language in Criminal law. While it is not the first Bill to make this attempt, it is the first one to acknowledge and address the rights and issues of all genders in entirety, including male and transgender victims.
The Bill aimed to make not only the provisions of sexual assault gender-neutral but also other crimes such as sexual harassment, eve-teasing, stalking, domestic violence, and voyeurism. In addition to these, other omissions and amendments were stated to be made through the Bill.
The Bill was based on the principle laid down in the case of Criminal Justice Society of India v. Union of India (2018), where the Supreme Court discussed the need for gender-neutral legal provisions for rape as well as other crimes and asked for the Government to consider it once.
The Bill is also based on international conventions like the Universal Declaration of Human Rights, 1948 that aims to preserve all human rights pertaining to freedom and equality. With its borrowed principle, the Bill aims to make Indian criminal laws more gender inclusive and flexible to give justice to even the rarest of exceptions.
The Bharatiya Nyaya Sanhita Bill, 2023
Bharatiya Nyaya Sanhita Bill of 2023, is the new and reformed Penal Code introduced for the replacement of the more than a century-old IPC. Along with this, the Bharatiya Nagarik Suraksha Sanhita Bill, 2023, is supposed to replace the current Criminal Procedure Code and the Bharatiya Sakshya Bill, 2023 shall replace the Indian Evidence Act upon its enactment.
The aim of such reformation was to revamp the criminal laws of the nation in accordance with current times. Since the rapid development of technology, the scope of crime has increased much beyond physical means. This Bill recognises such e-crimes and addresses them within its provisions.
In addition to that, the Bill aims to make all its provisions more gender inclusive as well as introduce new gender-neutral provisions for offences that were previously discussed in the Criminal Amendment Bill of 2019. Currently, all three Bills have only been introduced and are yet to be discussed and enacted.
UCC
In India, all family and succession law is governed by personal laws that may differ as per their religion. However, most of these laws, as mentioned earlier in the article, are not gender-neutral in nature. In fact, many of these laws seem to be preferential towards one gender or the other depending on their provisions, while excluding transgender or queer people in most places.
Thus, to address this, the Government has proposed the Uniform Civil Code (hereinafter referred to as ‘UCC’) to replace the existing system of personal Civil laws and bring uniformity among the citizens while not differentiating on the basis of religion or gender. Article 44 of the Indian Constitution also empowers the State to enact a UCC to ensure justice for people deprived of the influence of religion. However, as of now, UCC has yet to be passed or enacted but has already been introduced in the Parliament as a private member bill.
The most glaring issue with the existing personal laws is that most of them do not account for same-sex or queer couples at all, due to their orthodox provisions that are directly based on traditions and customs. The enactment of UCC can lead to the accommodation of same-sex couples along with an easier way of legalising their marriage, divorce, and adoption of children. Transgender communities would also benefit from such changes, especially if the UCC uses more gender-inclusive language.
Other policies and provisions
Besides the provisions mentioned above, India also has other laws that are gender-inclusive in nature. Such as the Hindu Marriage Act of 1955, under which a wife as well as the husband can claim for maintenance and permanent alimony if they are unable to sustain themselves after or during the divorce. Section 25 talks about the alimony and maintenance part, while Section 24 provides for the maintenance of the fees of divorce proceedings, which can be opted for by either of the spouses.
In addition to this, India has also implemented reservation policies to help fill the gap caused due to gender disparity seen in the composition of political and educational bodies. By reserving seats for women and transgender persons, such policies aim to bridge the gap one at a time while also ensuring the participation of these marginalised groups so that they can get the means to raise their own views and issues.
From the reservation of seats for women in public colleges and universities to the reservation of women and transgender persons in the Panchayat, Lok Sabha, and other political bodies, all these attempts are made to uplift the other genders and their interests while accommodating them alongside the interests of society.
Other countries with gender neutral laws
With globalisation, many concepts like gender neutrality and feminism have reached the farthest corners of the world, spreading awareness of the need for such concepts as well as their application through the legal provisions of a nation. Even now, many countries in the world are opting for more gender-neutral laws and language to promote more gender inclusivity among their citizens.
More than sixty-three countries, including most of the countries in Europe and North America, such as the UK, Canada, Germany, Finland, Ireland, and Iceland, have enacted gender-neutral laws. Even many Asian countries, such as South Korea, Bhutan, and Kazakhstan, have modified their criminal laws in a more gender-inclusive manner. Many of these nations have done so to align with the international conventions they have ratified under the United Nations, which India has also been a part of for a long time.
However, just like India, there are still many countries that have not yet opted for gender neutrality in all their legal provisions. While many of the laws are gender-neutral around the globe, some laws that are made specifically for women or transgender people, whether for their upliftment or protection, still need to stand as they are due to the glaring disparity between the genders in many such nations.
While it is also true that many Nations have gender-specific laws that are more discriminatory in nature than protective, such as the criminalisation of homosexuality or gender reassignment, the countries that do have such laws are much farther from the idea of gender equality, let alone gender neutrality.
Thus, gender neutrality is a work in progress for not only India but also other foreign nations.
Different perspectives on gender neutral laws
Just like any concept that may exist, gender neutrality also has some people advocating it while others critiquing it. Let us go through the arguments in favour and against gender-neutral laws to get a better understanding of the public opinion surrounding them.
In favour
The first argument that is always highlighted in favour of gender-neutral laws is how these laws are the next step to gender equality and how they can bring a better sense of equality and inclusivity to all genders.
While gender-specific laws have also helped the promotion and upliftment of the oppressed genders by great strides, the discrimination based on gender and sex created due to such laws has resulted in generalisation that has caused quite a lot of harm. In addition to that, the prejudice and preconception due to these generalised laws have suppressed many cases only because the genders of the parties involved differ from the ‘default’ ones recognised under the law. The biggest example of this being the rape laws, which have generalised all the rape victims to only females and the offenders to males.
Due to a lack of awareness, many people fail to recognise that even if a problem is not being talked about or showcased in mainstream media, it does not mean the problem ceases to exist. For instance, sexual assault on men by women, while rarer than vice versa, still exists despite not being discussed openly.
The second argument that is often put forth in favour of gender neutrality is how such gender-inclusive laws could also bring awareness to the concepts of gender identity and sexual orientation. Since these concepts are still quite new in many nations, including India, gender-neutral laws could bring more light to them and help in building more understanding among the general public about such concepts. While the social aspects of gender-neutral legal provisions may be complex to understand, they can be simplified with enough time and patience.
The third argument in favour of the usage of gender-neutral language for the legal provisions of a State is that it not only eliminates all types of discrimination based on sex and gender but also addresses issues faced by all genders without disregarding any of them. Some of these issues include unequal pay of female workers, the false implications on men for harassment, the discrimination faced by transgender persons during medical treatment and procedures, etc.
By removing all the legal provisions that restrict the scope of their application by specifying the gender of the parties, we can create a more gender-inclusive and understanding society where no one has to disregard the injustice happening to them only because their gender is traditionally regarded as the perpetrator of the crime rather than the victim.
Against
Just as there are arguments in favour of gender neutrality, there are also arguments against it. The most common argument against it is that introducing gender-neutral laws could lead to the removal of laws protecting women, especially when patriarchal roots are still very evident in Indian society.
The slogan ‘Gender just, gender-sensitive but not gender-neutral rape laws,’ was chanted by many women activists and organisations after the Nirbhaya gang rape case in 2012. It happened almost at the same time as the Criminal Amendment Bill of 2012 was being introduced in Parliament, which talked about gender neutrality in the Indian criminal legal system.
The fear that gender neutrality could lead to widening the still persisting gender gap led to a lot of protests. Many protesters justified their points with the fact that most countries with gender-neutral legal provisions do not have the deep-rooted patriarchal thinking that can still be found in Indian society.
In such a scenario, if gender-neutral laws are introduced, then male offenders or their connections could use such laws to file counter-complaints to pressure the victims to withdraw their complaints. And fighting two cases may be quite excessive for families who cannot even afford to pay the fee for a lawyer. Thus, such gender-neutral laws may lead to more harm than good.
Most of the activists supported the idea of positive discrimination, stating that it helps to undo the social and financial backwardness caused by centuries of oppression faced by women. India is still quite far away from becoming completely gender-neutral, especially with how women are still oppressed and preyed upon in the country. If gender-neutral laws are used in such times, then it would only lead to misuse by giving leverage to the perpetrator and suppressing the marginalised genders like females again by blackmailing them through false counter-complaints.
The second argument that is often brought against the gender-neutral approach to legal provisions is that it is against the tradition and culture of many, especially when given in the context of family laws that are governed by the personal laws in India. Introducing gender-neutral terminology in marriage, divorce, and inheritance laws can be seen as challenging the traditional customs of many religions, especially when taken in the context of religions like Muslim law, the believers of which are quite particular about their customs.
These rigid conservative or traditional views held by a considerable segment of the Indian population led to gender neutrality facing a lot of resistance even at the simple mention of its concept. It is further hindered by those who are unaware of the issues faced by men and transgender persons, resulting in difficulty in the implementation of gender-neutral laws.
After all, if people are not even aware that men can be victims of rape too and women can sexually harass too, then how can such actions even be recognised as crimes, let alone be prosecuted and get justice? This is also the third argument put forth by many critics, stating that the general public of India is not even aware of gender identity or even its equality. In such a scenario, how could the implementation of gender-neutral laws be effective or even useful?
As argued by those opposing gender-neutral laws, with an unaware public that still has deep-rooted patriarchal beliefs, a gender-neutral approach towards legal provisions like rape and domestic violence would be ineffective at best and harmful at worst.
Analysis of gender neutrality and gender equality
At the current stage, most of the Indian legal provisions, except some criminal provisions and family laws, are applicable to every citizen, regardless of their gender. Some provisions and legislations are gender-specific, but they are enacted as per Article 15(3) of the Indian Constitution to help with the upliftment of women after years of oppression and objectification.
While the current times are indeed rapidly changing, the truth behind it is that we are still quite far away from a gender-neutral world since the society we reside in is still quite gendered at its core. In such a scenario, absolute equality for all genders could come off as a form of injustice, especially when genders like females and transgender persons are still marginalised.
While one may argue that gender neutrality could resolve the issues of both the marginalised genders while also addressing the issues of male victims, the danger of its misuse is much greater than its actual usage. However, it can also be argued that the gender-specific laws that are currently enacted are also misused, just as we fear that the gender-neutral laws will be done the same.
It is true that bringing a gender-neutral approach to the Indian legal provisions would not diminish the rights of the female victims but rather give protection and remedy to the other genders with similar experiences. However, the question that arises here is whether absolute gender equality through gender neutrality is advisable when even gender equality is not achieved completely.
Even now, a high ratio of crimes committed in India are against women, with a copious number of those heinous crimes being against women. At such a stage, are gender-neutral laws the right approach for gender equality?
However, if we assume that India is not yet ready for gender-neutral laws, then what shall happen to the victims who are suffering from the same crimes but are not protected under its provisions only because their gender differs from the ones mentioned in the law? Even if such cases are quite few in comparison to their counterparts, shall they be ignored only on the basis of that simple fact?
As held by Justice Sharma of the Delhi High Court in the recent case of Rakesh v. UOI, all laws have the ‘potential to be misused’, whether they be gender-specific laws or gender-neutral ones like the POCSO Act. These ‘misuses’ can be in the form of malicious prosecution, blackmail, intimidation, etc. However, that does not mean the Legislature should just cease to enact such laws. All laws are enacted to address the larger interests of society and give justice to those who have suffered due to such crimes.
While there is still a huge power imbalance between the genders due to centuries of oppression and marginalisation, that does not mean gender neutrality cannot be implemented. It is true that levelling the legal field by making it gender-neutral at a stage where the gap between the genders is still present might seem quite unjust. However, not doing so could also lead to injustice and unawareness to those who are suffering due to a lack of gender inclusivity.
The best way to tackle such a situation is by first acknowledging the arguments of both sides and spreading awareness about the issues raised by them. As mentioned earlier, the unawareness of the general population can stand as the biggest hurdle in the implementation of such legal provisions. Thus, the best place to start is by educating the masses about crimes that can be gender-neutral too.
Such awareness campaigns can help a lot in setting the stage for the next step in gender equality.
Conclusion
With the progression of time, the needs of the people are also evolving and changing. In such a situation, the legal provisions of a nation also need to be changed and amended as per the requirements of the public. In the current situation, India has made huge improvements in uplifting marginalised genders through its legal provisions. Now, the next step that is needed to further our goal towards gender equality is introducing gender-neutral language to our provisions to make them inclusive without any generalisation or prejudice.
Frequently Asked Questions (FAQs)
1. What is the difference between Gender Identity and Sexual orientation?
Gender identity is a term used to identify how an individual expresses their personal sense of gender, which is not dependent on their biological sex. Since gender is a social construct, whichever construct one identifies more with would be their gender identity. Sexual orientation, on the other hand, depends on which gender an individual is attracted to. If a man is attracted to a woman, he is straight. If he is attracted to a man, he is gay, and if he is attracted to both men and women, he is bisexual. Similarly, there are many other sexual orientations, just as there are many other genders.
2. What is the need for gender-specific laws?
Gender-specific laws, while discriminatory in nature, are enacted to protect the genders that are most vulnerable to such crimes and social injustices. They promote gender equality by uplifting the marginalised genders, such as women and transgender people. They act as a stepping stone to level the field for the genders that have been oppressed for years.
3. What are the drawbacks of gender-specific laws?
While gender-specific laws act as protective provisions for marginalised genders, many people also attempt to abuse and misuse them. This can be in the form of using these provisions to file malicious complaints against others and even blackmailing others to file such complaints if not complying with their demands. Furthermore, these gender-specific laws can often suppress the experiences of genders not mentioned under their provisions, such as male and transgender rape victims under Section 375 of the IPC.
References
- M. Seervai, Constitutional Law of India, Universal Law Publishing Co., Reprint 2013.
- M. Bakshi, The Constitution of India, Universal Law Publishing Co., 2014.
- Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, Allahabad, 37th edition, 2001.
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