Redefining Justice And Equality With Gender-Neutral Penal Codes
In a world marked by evolving social norms and a growing commitment to
inclusivity, gender-neutral laws have emerged as a sign of progress in the legal
landscape of a country. The gender-neutral laws are designed to eliminate
gender-based discrimination and promote equal rights and are an indication of
the nation's unwavering dedication to building a more just and equitable
society.
For far too long, victims of gender-based crimes in India have endured a flawed system that often perpetuated victim-blaming and failed to deliver justice. The advent of gender-neutral criminal laws seeks to rectify these systemic shortcomings by ensuring that all victims, regardless of gender, receive equal protection before the law. By broadening the scope of offences beyond gender stereotypes and recognizing the diverse forms of violence that can be inflicted upon any individual, the legal system addresses the unique challenges faced by marginalized communities.
The Constitution of India under Article 14 talks about the equality before law and gives every citizen the right to live with dignity. However, when it comes to offences like rape sexual-harassment voyeurism, stalking, and sexual assault males and transgender communities of society are always denied their rights
In terms of sexual offences, gender neutrality refers to the impartial application of the law to all people, regardless of gender identity, to ensure that they are equally protected and acknowledged as either prospective victims or perpetrators of sexual offences.
Indian society prioritizes males over females in families and prevents the acknowledgement of men as sexual assault victims. There is a misconception that victims of sexual offences are weak and that men are too powerful to be subjugated. This belief prevents a male victim from reporting the offence, due to the fear of society and loss of their manhood.
Additionally, it is ridiculous to think that a woman would commit such crimes due to the belief that she is the weaker sex and needs to be protected. This patriarchal aspect of Indian society has made a man a perpetrator of sexual offences and also provided obstruction in extending the scope of the law against sexual offences, to make it gender-neutral which also includes transgender not just males.
A major setback in a case of proving sexual offence against a man is physiological factors. It is contended that an engorged penis is proof of consent. This contention is as incorrect as saying that a woman had consented to a sexual act because she had vaginal lubrication during it. Reliance shall be placed on medical literature asserting that physiological factors, like an erected penis or lubricated vagina, are responses to sexual stimuli, and are out of control of a person –thus, not a proof of conscience consent for the sexual act[1].
Rape has always been considered a crime committed by men, not particularly in India but all over the world. As defined in section 375[2] of IPC A man is said to commit "rape" It specifically states that rape can only be committed by a man and women can only be a victim not just rape but laws pertaining to sexual harassment, voyeurism, stalking, and sexual assault are also gender-specific, stating that only males can commit these crimes and that only women are their victims.
Except in cases of Gang rape section 376(2)(g)[3] Which talks about "person" rather than "man", which signify that the law-makers intended to keep Sec. 376(2)(g) gender-neutral.
The question of sec 376(2)(g) of being gender neutral came before the apex court in the case of (Priya Patel v. state of Madhya Pradesh)[4]
Where the appellant was prosecuted for ''gang rape'' on the prosecutrix.
The judgement of the court
The Court precisely held that the non-ambiguous language of section 375 of IPC expressly mentions that the act of rape can only be performed by a 'man' and not by "any person". Thus a woman cannot commit rape.
The court further ruled that a woman cannot have an intention to rape, as it is conceptually inconceivable and therefore, she can neither be held for rape nor gang rape. The court further held that the expression "in furtherance of their common intention" as appearing in Explanation I to Section 376(2) IPC, relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. And therefore, a prosecution cannot be launched against a woman for gang rape[5].
Obstacles to Gender Neutral Law.
Deep-rooted socio-biased notion:
Addressing the issue of gender equality needs to challenge deeply ingrained societal notions and biases that preserve stereotypes and discrimination. The resistance to change from individual, institutional, and cultural norms can pose a significant obstacle in the development and adoption of gender-neutral law.
In patriarchal Indian society, males are expected to act in a specific manner. Any variation from this behaviour invites criticism from society, most commonly from other men. In the 21st century, it is not unusual for a woman to practice law, drive a truck, wrestle, or do any of the more masculine tasks. But if a man shows a feminine side, or has hobbies that are considered to be feminine by society, it is frowned upon.[6]
Insufficient reporting and discrimination:
The media has a significant influence on how individuals think in the modern world. Men are not depicted as sexual assault victims in the mainstream Indian media, which also presents an unrealistic image of the ideal male. Another worrying problem that is made light of by the Indian media is the stereotyping and harassment of homosexual and transgender people.
"He was an animal. He raped me that night – I thought I would just have to dance. "Daina Dias was a teenager working as a bar dancer in Goa, India, when her manager told her to go to a man's house to entertain him.Dias said she didn't bother reporting the attack to police – as a transgender woman, officers wouldn't have taken her seriously anyway, she said[7] Dias does not have any law in her favour despite she is a victim but not a woman and the sexual offences laws in Indian recognises only woman as victim.
Violence and violation are a part of daily life for an LGBTQ+ person. While the legal system is usually used against these communities, the laws need to evolve considering the fluidity of gender and how a wide variety of persons may exist who do not conform to the set gender structures," said lawyer Saurabh Kirpal, a trustee of the Naz Foundation, a non-governmental organization (NGO) that works on HIV/AIDS and sexual health. "The law is not only silent on this but also fails to acknowledge the existence of LGBTQ+ people.
Sexual offences laws and their interpretation.
Not only the males the members of the transgender community are also ignored by the legislature in crimes related to sexual offences.
In the case of State Of Punjab vs Ramdev Singh[8] the apex court has observed:
Rape is not only an offence against women rather a crime against women but a crime against the whole society. it is a crime against basic human rights and violates the most cherished fundamental right guaranteed under Article 21 of the constitution of India.
As a result of the Supreme Court's aforementioned observation, it is easy to conclude that rape is a crime against our entire society.
The Transgender Persons (Protection of Rights) Act, 2019, under Chapter 8 Section 18(d)[9] Whoever:
(d) harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.
This clearly shows the legislature's neglect of the rights of transgender people. The fact that sexual abuse has been classified as a minor offence punishable by a maximum of two years in jail and a fine, whereas a similar offence committed against a woman could result in a lifetime sentence in prison, gives off the distinct smell of discrimination. In the 172nd Law Commission Report[10], where for the first time the demand for gender-neutral law was advocated, it was found by the law commission that the law was gender-centric and needed an amendment. The Commission has proposed the replacement of the present word rape by the word sexual assault as per the suggestions of the National Commission for Women.[11] to make it gender-neutral but this recommendation was only followed by the University Grants Commission(UGC).
The UGC in the exerice of its power under section 26(1)(g) and 20(1) if the University Grant Commission Act,1956[12] made these regulations apply to all the higher educational institutions in India. Regulation 3(d) of the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions)
Regulations, 2015 provides that:
It will be the responsibility of all higher education institutions to act decisively against all gender-based violence perpetrated against employees and students of all sexes recognising that primarily women employees and students and some male students and students of the third gender are vulnerable to many forms of sexual harassment and humiliation and exploitation.
The regulation by UGC is a step towards the gender-neutral law beside the Protection of Children from Sexual Offences Act, 2012(POCSO)[13] which is a gender-neutral law and recognizes that boys can be victims of sexual violence as well. It defines a child as someone below the age of 18.
End-Notes:
For far too long, victims of gender-based crimes in India have endured a flawed system that often perpetuated victim-blaming and failed to deliver justice. The advent of gender-neutral criminal laws seeks to rectify these systemic shortcomings by ensuring that all victims, regardless of gender, receive equal protection before the law. By broadening the scope of offences beyond gender stereotypes and recognizing the diverse forms of violence that can be inflicted upon any individual, the legal system addresses the unique challenges faced by marginalized communities.
The Constitution of India under Article 14 talks about the equality before law and gives every citizen the right to live with dignity. However, when it comes to offences like rape sexual-harassment voyeurism, stalking, and sexual assault males and transgender communities of society are always denied their rights
In terms of sexual offences, gender neutrality refers to the impartial application of the law to all people, regardless of gender identity, to ensure that they are equally protected and acknowledged as either prospective victims or perpetrators of sexual offences.
Indian society prioritizes males over females in families and prevents the acknowledgement of men as sexual assault victims. There is a misconception that victims of sexual offences are weak and that men are too powerful to be subjugated. This belief prevents a male victim from reporting the offence, due to the fear of society and loss of their manhood.
Additionally, it is ridiculous to think that a woman would commit such crimes due to the belief that she is the weaker sex and needs to be protected. This patriarchal aspect of Indian society has made a man a perpetrator of sexual offences and also provided obstruction in extending the scope of the law against sexual offences, to make it gender-neutral which also includes transgender not just males.
A major setback in a case of proving sexual offence against a man is physiological factors. It is contended that an engorged penis is proof of consent. This contention is as incorrect as saying that a woman had consented to a sexual act because she had vaginal lubrication during it. Reliance shall be placed on medical literature asserting that physiological factors, like an erected penis or lubricated vagina, are responses to sexual stimuli, and are out of control of a person –thus, not a proof of conscience consent for the sexual act[1].
Rape has always been considered a crime committed by men, not particularly in India but all over the world. As defined in section 375[2] of IPC A man is said to commit "rape" It specifically states that rape can only be committed by a man and women can only be a victim not just rape but laws pertaining to sexual harassment, voyeurism, stalking, and sexual assault are also gender-specific, stating that only males can commit these crimes and that only women are their victims.
Except in cases of Gang rape section 376(2)(g)[3] Which talks about "person" rather than "man", which signify that the law-makers intended to keep Sec. 376(2)(g) gender-neutral.
The question of sec 376(2)(g) of being gender neutral came before the apex court in the case of (Priya Patel v. state of Madhya Pradesh)[4]
Where the appellant was prosecuted for ''gang rape'' on the prosecutrix.
The judgement of the court
The Court precisely held that the non-ambiguous language of section 375 of IPC expressly mentions that the act of rape can only be performed by a 'man' and not by "any person". Thus a woman cannot commit rape.
The court further ruled that a woman cannot have an intention to rape, as it is conceptually inconceivable and therefore, she can neither be held for rape nor gang rape. The court further held that the expression "in furtherance of their common intention" as appearing in Explanation I to Section 376(2) IPC, relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. And therefore, a prosecution cannot be launched against a woman for gang rape[5].
Obstacles to Gender Neutral Law.
Deep-rooted socio-biased notion:
Addressing the issue of gender equality needs to challenge deeply ingrained societal notions and biases that preserve stereotypes and discrimination. The resistance to change from individual, institutional, and cultural norms can pose a significant obstacle in the development and adoption of gender-neutral law.
In patriarchal Indian society, males are expected to act in a specific manner. Any variation from this behaviour invites criticism from society, most commonly from other men. In the 21st century, it is not unusual for a woman to practice law, drive a truck, wrestle, or do any of the more masculine tasks. But if a man shows a feminine side, or has hobbies that are considered to be feminine by society, it is frowned upon.[6]
Insufficient reporting and discrimination:
The media has a significant influence on how individuals think in the modern world. Men are not depicted as sexual assault victims in the mainstream Indian media, which also presents an unrealistic image of the ideal male. Another worrying problem that is made light of by the Indian media is the stereotyping and harassment of homosexual and transgender people.
"He was an animal. He raped me that night – I thought I would just have to dance. "Daina Dias was a teenager working as a bar dancer in Goa, India, when her manager told her to go to a man's house to entertain him.Dias said she didn't bother reporting the attack to police – as a transgender woman, officers wouldn't have taken her seriously anyway, she said[7] Dias does not have any law in her favour despite she is a victim but not a woman and the sexual offences laws in Indian recognises only woman as victim.
Violence and violation are a part of daily life for an LGBTQ+ person. While the legal system is usually used against these communities, the laws need to evolve considering the fluidity of gender and how a wide variety of persons may exist who do not conform to the set gender structures," said lawyer Saurabh Kirpal, a trustee of the Naz Foundation, a non-governmental organization (NGO) that works on HIV/AIDS and sexual health. "The law is not only silent on this but also fails to acknowledge the existence of LGBTQ+ people.
Sexual offences laws and their interpretation.
Not only the males the members of the transgender community are also ignored by the legislature in crimes related to sexual offences.
In the case of State Of Punjab vs Ramdev Singh[8] the apex court has observed:
Rape is not only an offence against women rather a crime against women but a crime against the whole society. it is a crime against basic human rights and violates the most cherished fundamental right guaranteed under Article 21 of the constitution of India.
As a result of the Supreme Court's aforementioned observation, it is easy to conclude that rape is a crime against our entire society.
The Transgender Persons (Protection of Rights) Act, 2019, under Chapter 8 Section 18(d)[9] Whoever:
(d) harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.
This clearly shows the legislature's neglect of the rights of transgender people. The fact that sexual abuse has been classified as a minor offence punishable by a maximum of two years in jail and a fine, whereas a similar offence committed against a woman could result in a lifetime sentence in prison, gives off the distinct smell of discrimination. In the 172nd Law Commission Report[10], where for the first time the demand for gender-neutral law was advocated, it was found by the law commission that the law was gender-centric and needed an amendment. The Commission has proposed the replacement of the present word rape by the word sexual assault as per the suggestions of the National Commission for Women.[11] to make it gender-neutral but this recommendation was only followed by the University Grants Commission(UGC).
The UGC in the exerice of its power under section 26(1)(g) and 20(1) if the University Grant Commission Act,1956[12] made these regulations apply to all the higher educational institutions in India. Regulation 3(d) of the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions)
Regulations, 2015 provides that:
It will be the responsibility of all higher education institutions to act decisively against all gender-based violence perpetrated against employees and students of all sexes recognising that primarily women employees and students and some male students and students of the third gender are vulnerable to many forms of sexual harassment and humiliation and exploitation.
The regulation by UGC is a step towards the gender-neutral law beside the Protection of Children from Sexual Offences Act, 2012(POCSO)[13] which is a gender-neutral law and recognizes that boys can be victims of sexual violence as well. It defines a child as someone below the age of 18.
End-Notes:
- https://www.scconline.com/blog/post/2021/05/27/should-sexual-offences-be-gender-neutral/
- Indian Penal Code 1860
- Indian penal code
- Priya Patel vs State Of M.P. & Anr on 12 July, 2006
- https://indiankanoon.org/doc/1555191/
- Patricia Novotny, Rape Victims in the (Gender) Neutral Zone: The Assimilation of Resistance? 1(3) Seattle Journal for Social Justice, Vol. 62, (2002), available at, last seen on 20-12-2020
- https://edition.cnn.com/2020/12/08/india/india-transgender-rape-laws-intl-hnk-dst/index.html
- https://indiankanoon.org/doc/255210/
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_25_35_00007_201940_1579157374013§ectionId=49791§ectionno=18&orderno=18
- https://lawcommissionofindia.nic.in/cat_indian_penal_code/
- https://archive.pib.gov.in/archive/releases98/lyr2002/rjan2002/04012002/r040120023.html
- https://www.ugc.gov.in/oldpdf/ugc_act.pdf
- https://wcd.nic.in/sites/default/files/POCSO%20Act%2C%202012.pdf
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