Although the term ‘gender’ is primarily used to refer to males, females and transgender but its binary interpretation remains deeply ingrained in the mindset of the society. In India since the medieval era, special protection was given to women by laws as they were often oppressed, exploited and vulnerable. Women today are at par with men in status, education, employment and other avenues due to dedicated and earnest efforts of law makers yet the idea of feminism is grossly misconstrued in post-globalisation era. It is an indisputable fact that women continue to be targets of brutality and violence but at the same time it is often difficult for people to comprehend that men can also be victims of abuse and cruelty. The legal disparity of gender-neutral laws inadvertently fosters the belief that men are guilty parties while women are innocent. It is crucial to carefully consider the gender-specific criminal laws in India, particularly those pertaining to sexual offences and cruelty along with inconsistencies drawn between these gender specific laws and principles of justice, equality, liberty and dignity guaranteed by our Constitution. The purpose of gender-neutral legislation is to render all genders equal protection, opportunities and sanctions without any negative discrimination either by explicitly stating every gender in law or by making the language gender neutral. For instance, the Protection of Children from Sexual Offences Act, 2012 defines a child as “Any person below the age of eighteen years”. By using the word ‘any’ equal protection is granted to all genders. Thus, gender neutral laws hold the view that policies, language and social institutions should prevent distinguishing roles based on gender or sex of people.
Under the new criminal laws, offence dealing with procuration of girl for illicit intercourse has been made gender neutral and also different age limits for male and female in kidnapping of minors i.e., 16 and 18 years respectively has been changed to 18 years for both. The Parliamentary Standing Committee on Home Affairs headed by MP Brijlal charged with assessing the three new criminal laws has suggested on the lines of gender neutrality to recriminalize adultery and also retain Section 377 of the Indian Penal Code that criminalises unnatural offences. This follows after the five-judge Constitution Bench unanimously decriminalised adultery in the case of Joseph Shine v. Union of India in 2018 for being archaic, paternalistic and arbitrary as it only penalised married man and reduced married woman to be a chattel of her husband. The Committee stated “The institution of marriage is considered sacred in Indian society and there is a need to safeguard its sanctity. For the sake of protecting the institution of marriage, this section should be retained by making it gender neutral.” As for Section 377 the Supreme Court in Navtej Singh Johar v. Union of India in 2018 declared the provision to be in violation of Articles 14, 15, 19 and 21 of the Indian Constitution but it remained in force in cases of bestiality, all acts of carnal intercourse with minor and non-consensual carnal intercourse with adults. The Committee opined that no such provision for non-consensual sexual offences against males, females and transgenders and acts of bestiality is included in the BNS. However, the Committee snubbed to take into consideration much-discussed rape laws along with offences such as voyeurism, stalking, sexual harassment, sexual assault, outraging modesty, cruelty that are completely gender specific and fail to recognise men and transgenders as victims of these crimes. Similarly, under Section 114A of the Indian Evidence Act if a woman in her testimony or evidence contends that she did not consent to the sexual intercourse, the court will presume there was no consent thus giving woman testification in rape cases supremacy. Maintenance laws under Section 125 of the Code of Criminal Procedure are also gender specific as it imposes duty only on the male counterpart. 172nd Law Commission Report suggested that rape law must be gender-neutral for both the victim and offender while Justice Verma Committee Report advised a gender-neutral law for the victim but a gender-specific law for the offender. However, none of these was included into the law of the land.
Gender based criminal laws must be revised as uplifting the status of women should not mean neglecting the victims of other communities. Every law runs the risk of misappropriation but that should not deter the government from enforcing it. Thus, the argument that gender neutral laws on sexual abuse and rape will lead to misuse and counter complaints by men which would further discourage women from reporting sexual crimes to authorities is fallacious. Cases of female-to-female rape, male to male rape and marital rape are on the rise and need to be proactively addressed. Gender – inclusive definitions of victim and perpetrator will expand the scope of justice, making laws more considerate of the needs, functioning and conduct of all genders across the paradigm thus eliminating gender biases. Certain concerns regarding sexual orientation, gender identity and marginalization needs to be addressed before enacting gender – neutral legislations.
Gender neutral rights not only ensure equality but also create a sense of security and balance in the society and prevents the sense of superiority that generally gives rise to crimes. With the progressive evolution of socio – legal dynamics, it is time to acknowledge the rights of other communities and make laws gender neutral to ensure a fairer and more inclusive legal framework and protection as Thomas Jefferson rightly said, “Nothing is so unequal as the equal treatment of unequal people.”
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