Need for More Gender-Neutral Laws

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10-May-2024 | Samiksha Kanaujia

The rule of law in the Indian Constitution establishes that laws apply equally to all citizens, meaning that everyone is equal before the law. However, ‘equality before law’ does not imply that Indian society has become free from biases; the discrimination of the marginalised and minority communities is visible in several instances.

Legal provisions exist to protect the marginalised and bring them on equal footing; this is seen in the case of women. Since the gender inequalities in our legal system are a harsh yet apparent reality, legal safeguards were introduced to protect women's rights. Although these laws have been crucial in addressing several issues, they frequently reinforce gender stereotypes and, at times, are inadequate for effectively protecting the rights of other genders.

For instance, most provisions often neglect gender diversity and assume women are victims and men are perpetrators. In this regard, formulating and implementing gender-neutral laws are essential in addressing inequality. Briefly, gender-neutral laws envisage treating people equally and not discriminating based on gender, regardless of how they identify.

Why do we Need Gender-Neutral Laws?

Social Perspective: Patriarchy being deeply embedded in our Indian society; it is difficult for us to imagine that men can be subjected to violence, too. Even when cases involving male victims are reported, they often face scepticism, especially if the perpetrator is a woman.
- The prevailing lack of understanding regarding the occurrence of men being raped or harassed is so extensive that the victim themselves may be oblivious to the problem.
  - Suppose a man experiences sexual harassment from another guy. In that case, it is often erroneously perceived as an indication of his homosexuality, leading to the victim being excluded and subjected to unwarranted humiliation.
- On the other hand, even in cases where both the victim and the perpetrator are women, such crimes are still disregarded due to the presumption that women cannot be the perpetrators of harassment or violence.
Legal Perspective: Although India has made substantial strides towards achieving gender equality, several difficulties still cannot be resolved by implementing measures to protect one gender. Thus, we must progress towards achieving gender equality by reforming our laws to be more gender-neutral.
- For many years, the Indian judiciary has been the most active advocate and critic of gender neutrality. Judgments such as National Legal Services Authority v. Union of India (2014), in which transgender rights were recognized as the third and separate gender.
- The Navtej Singh Johar case v. Union of India (2018), in which homosexuality was decriminalised by the Supreme Court in 2018, has made progressive interpretations of the Constitution, paving the way for gender-neutral laws.

Court Rulings on Gender Neutralising several Laws

On Marriage: In Supriyo v. Union of India (2023), the Supreme Court formed a constitutional bench to hear the petition to legalise same-sex marriages. Proponents argued that prohibiting same-sex marriage violates Articles 14 and 21 of the Indian Constitution and several precedents.
- Such as Shakti Vahini v. Union of India (2018), which held that every adult has the right to choose. Many believed that Section 4 of the Special Marriage Act of 1954, if altered to be more gender inclusive, may legalise same-sex marriages.
- However, the Supreme Court on 17 October 2023 in the case of Supriyo Chakaraborty v. Union of India ruled that the Judiciary cannot interfere with the Legislature and cannot legalise same-sex marriages.
In Rape Laws: The Delhi High Court's 1996 ruling in Smt. Sudesh Jhaku v. K.C.J. underlined the necessity for IPC protection for male rape victims, one of the first judgments to address gender neutrality.
- In 2013, the definition of sexual harassment was revised to be more inclusive, no longer limited to cases where the victim is female and the offender is male. This amendment defined all forms of penetration, including vaginal, oral, and anal, as sexual assault. Previously, rape was exclusively defined as the act of penile-vaginal penetration.
- The historic Mukesh v. State for NCT of Delhi (2012), or Nirbhaya case, prompted this modification. Indian criminal laws need further modification to include gender-neutral terminology. In a separate instance, the Supreme Court, in the case of Sakshi v. Union of India (1997), directed the Law Commission to examine the issue of male rape victims and the implementation of laws in a gender-neutral manner.
- This examination eventually led to the inclusion of the problem in the Law Commission's 172nd Report. Introducing the Criminal Law Amendment Bill of 2012 in the Lok Sabha significantly promoted gender neutrality in India. Still, it was halted at that stage due to various issues.

Existing Gender Neutral Provisions

Gender-neutral laws in India pertain to laws and policies that do not discriminate against individuals based on gender. These regulations ensure that all individuals, regardless of gender identity, are granted equal rights and opportunities. Article 39(a) of the Constitution states that every citizen of India, regardless of gender or sex, has the right to adequate means of livelihood. Fundamental rights and Directive Principles of State Policy aim to guarantee equal treatment and legal protection for all individuals, irrespective of their gender identity. Some examples of gender-neutral laws in India include:

POSCO Act, 2012: or The Protection of Children from Sexual Offences Act of 2012, is legislation enacted to protect children under the age of majority from sexual abuse and harassment, including offences such as rape, pornography, harassment, and assault. As held by the Delhi High Court in the case of Rakesh v. State of NCT of Delhi (2023), the POCSO Act applies to children of all genders.
Hindu Marriage Act of 1955: Predominantly, the law benefits men, though specific provisions were made to the law gender inclusive.
- For instance, women benefit significantly from Section 5's polygamy ban (irrespective of gender). Before this section was established, Hindu males had multiple weddings for many reasons, including son birth, modesty, etc.
- In other instances; K. Srinivas v. K. Sunita (2014) and Mamta v. Pradeep Kumar (2023), the wife harassed the husband and his family with false domestic abuse charges without evidence. After such harassment, the husband sought for divorce on the grounds of mental cruelty under Section 13(1)(ia) of the Act, which was granted in both cases.
The Transgender Persons (Protection of Rights) Act, 2019: The Transgender Act recognizes the rights of transgender persons and prohibits discrimination against them in accessing education, jobs, and health care services.
- In the cases of sexual offences against transgender persons, the punishment is imprisonment for a minimum of six months, with the possibility of a maximum two-year sentence.
  - This sentence is much lower than the IPC's for sexual assault against women. 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.
  - The Act has failed to address the socio-legal issues faced by transgender persons. The Act mandates transgender people to register proof of gender reassignment surgery before they can officially change their identity, which can be difficult for those without adequate resources. It also ignores the fact that not all transgender people seek such invasive surgery.
- Even though this law is gender-specific, it is significant in addressing the issue of transgender persons, especially when concerning cases of physical abuse, laying out a path for gender inclusivity, and further discussion on gender neutrality in our legal system.
The Bharatiya Nyaya Sanhita Bill, 2023: It has been introduced to replace the century-old IPC. Additionally, the Bharatiya Nagrik Suraksha Sanhita Bill, 2023 will replace the Criminal Procedure Code and the Indian Evidence Act. The BNS seeks to make all its provisions gender inclusive and establish gender-neutral provisions for offences covered in the Criminal Amendment Bill of 2019. All three Bills have been introduced and are awaiting discussion and enactment.

Conclusion

Over the years, India has made significant progress in uplifting marginalised genders through existing laws and regulations. The existing laws aim to eliminate discrimination based on sex and gender, be it the pay discrepancy, gendered sexual violence, discrimination faced by transgender persons during medical treatment and procedure, etc. It can also be argued that these laws can bring sensitivity toward different gender identities and awareness toward gender-neutral language in the courtroom and among the public.

The roadmap for gender-neutral laws is not that simple; there are concerns that gender neutrality may contribute to the deepening of the persisting gender disparity and discrimination, or laws may be misused. These pertinent concerns indicate that our legal system must be careful about how gender-neutral laws are interpreted. As gender-neutral laws are a step toward gender inclusivity and equality, we should strive towards more gender inclusivity in our legal system.

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