Gender Neutral Laws in India: Need of the Hour

Introduction

India, a country that is known for diverse cultures & traditions, significantly strides towards inclusivity and equality in various segments. But when it comes to domestic gender-neutral laws, the country still has a long way to go. Gender-neutral laws reflect that the legal framework of the country does not discriminate against individuals based on their gender identity. The absence of gender neutrality creates disadvantages for certain groups, like men or the LGBTQIA+ community, which is currently a big issue requiring immediate legislative intervention. This article explores the current state of gender-neutral laws in India, highlighting significant case laws and statutory provisions that underscore the need for reform.

Current Legal Framework 

As it can be observed that laws in India have been predominantly binary, categorizing persons strictly as male or female. However, recent legislative changes have begun to address this gap, but the progress is quite slow. 

1. Bharatiya Nyaya Sanhita (BNS), which was enforced on July 1, 2024, replaced the Indian Penal Code (IPC) and introduced some gender-neutral provisions, particularly regarding sexual offenses.

   
   

Some key changes include:

• Section 96: Now the term "minor girl" has been replaced with "child," hence now it includes both male and female under the age of 18.

• Section 141: The phrase "importation of girl from a foreign country" has been amended to include "girl or boy," reflecting a more inclusive approach to trafficking laws.

Despite these advancements, 

• Section 63 (Rape) & Section 64 (Punishment for Rape) define rape as an offense that can only be committed against a woman by a man, thereby excluding male and transgender victims, which often leads to misuse of law.

• Section 74 (Outraging the Modesty of a Woman) & Section 75 (Sexual Harassment) does not recognize similar offenses against men or non-binary individuals.

• Section 85: This section criminalizes cruelty against women in marriages. While it serves as a safeguard for women, it is being highly misused against men nowadays.

• And the list goes on..

  
  
  
  

2.    Protection of Women from Domestic Violence Act, 2005:

• This act aims to protect women from domestic violence. However, it does not extend protection to male or LGBTQIA+ victims of domestic abuse.

  
  

3.  Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013:

• Restricts protection against workplace harassment only to women, leaving male and transgender individuals without a legal remedy.

  
  

4.               Dowry Prohibition Act, 1961:

·       Primarily protects women from dowry harassment but does not account for instances where men or transgender persons might be victims of dowry-related coercion.

5.               Hindu Marriage Act, 1955 (HMA):

• Provisions such as maintenance under Section 24 and alimony under Section 25 largely favor women, often disregarding the financial vulnerabilities of men.

  
  

Judicial Recognition and Case Laws

While legislative reforms have been slow, Indian courts have progressively acknowledged the need for gender-neutral laws in some cases like

I.                    Navtej Singh Johar v. Union of India (2018) 10 SCC 1: In this case the Supreme Court of India decriminalized consensual same-sex relationships by partially striking down Section 377 IPC, emphasizing that sexual orientation is intrinsic to personal identity and cannot be grounds for discrimination.

II.                    Joseph Shine v. Union of India (2018): The Supreme Court struck down the adultery law under Section 497 IPC for being gender-biased, as it only penalized men, reinforcing the need for neutral legal provisions.

III.                    Need for Gender-Neutral Laws

• Inclusivity of genders: Gender-neutral laws ensure equality and inclusivity. According to the National Family Health Survey (NFHS), around 60 lakh women have been perpetrators of physical violence against their husbands. Hence this highlights the vulnerability of transgender individuals to sexual violence and discrimination.

  
  

• Misuse of Gendered Laws: The misuse of gender-specific laws has been a recurring issue. In Rajesh Sharma v. State of Uttar Pradesh (2017), the Supreme Court noted the misuse of Section 498A IPC and directed safeguards to prevent its abuse.

  
  

Conclusion

In summary, there is indeed an urgent need for gender-neutral laws in India for the development of a comprehensive legal framework, which would extend its protection to each and every individual, defying categorization on the basis of gender. Given that some recent amendments and judicial precedents reflects a shift towards recognizing diverse identities, several gaps remained in the present legal framework. The existing laws often lure real discrimination against men and the LGBTQIA+ community, resulting in their misuse at mass. Comprehensive reforms are necessary to ensure that all victims of gender-based violence receive equal legal recourse. By embracing gender neutrality, India can take a crucial step towards achieving true equality and justice for all its citizens.

This article is authored by Deepanshu Tembhre. He was among the Top 40 performers in the Cyber Law Quiz Competition organized by Lets Learn Law.