Equality in Protection = Justice for All

In the context of domestic violence laws, gender-planetary rights represent a significant development in the legal framework with the aim of protecting all individuals from abuse, whether their gender identity or sexual orientation. Most domestic violence laws developed within the normative denial of non-binary genders, and in essence, concentrating on the 'male violence against female' syndrome.

Previously, domestic laws have focused on the protection of women, but keeping in mind present-day society, crimes can happen not only with women but also with men. There is an increasing need to protect non-binary, transgender, and male victims of domestic violence. This paper investigates the nexus between gender-neutral rights and the laws on domestic violence concerning the historical development of legal protections for people regardless of gender identity. The study addresses the gaps, legal changes, and dominant case law dealing with domestic violence from the perspective of gender neutrality.

This exploration underlines that the fight against domestic violence should be kept in equality and respect for all individuals, regardless of gender. This article discusses the need for gender-neutral laws in India, their significance, and the challenges and opportunities they present in the pursuit of a more inclusive legal system.

Introduction:
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.

Domestic violence laws have historically been premised on a binary concept of gender. They virtually provide for the protection of women who are ostensibly the victims of domestic violence. This legal doctrine captures the age-old gendered societal thinking about the division of labor. There is, however, a growing acknowledgment of non-binary, transgender and even male victims of domestic violence. There is growing acceptance that these individuals need equal opportunities in law devoid of socially constructed labels. Such laws enables all victims, irrespective of the identity, to access protection, support, and legal mechanisms.

The legal perspective is important to understand how gender-plated rights are integrated into the domestic violence law. Legal scholars, policy makers and courts play an important role in developing justice systems to become more inclusive and protective of all individuals.

What is Gender Neutrality?

Definition: The concept of gender neutrality, sometimes referred to as gender-neutralism, holds that laws, terminology, and other social structures shouldn't differentiate between roles based on a person's sex or gender. This is to prevent discrimination based on the idea that one gender is better suited for certain social roles than the other. Marketing, toys, education, and parenting styles are just a few of the areas of society that have been significantly impacted by the historical disparity in gender equality. In recent years, society has placed more emphasis on using inclusive language and promoting equality in an effort to increase gender neutrality.

Why India Needs Gender-Neutral Laws

• Inclusive Justice:
  • Gender-specific laws often assume predefined roles of victim and offender.
  • For instance, Section 375 of the Indian Penal Code (IPC) defines rape as an act committed by a man against a woman, excluding male and transgender victims.
  • Gender-neutral laws would ensure that the law protects all individuals equally.
  • In the Constitution, there is no article mentioned for the protection of males.
• Preventing Misuse:
  • Gender-specific laws are sometimes misused to lodge false cases.
  • In 2020, out of 28,046 registered rape cases, 5,015 were closed as false by police, indicating a substantial portion of reported cases are deemed fabricated. (according to Google)
  • According to National Crime Record Bureau (NCRB), about 74% of rape cases under Section 376 of the IPC end up acquitting the accused.
  • Recently, DGP of Rajasthan Mr. Umesh Mishra said that the registration of false rape cases has gone up to 45% last year in the state.
  • The "Me Too" movement, which began about two years ago, saw various males being falsely accused of domestic violence.
  • Gender-neutral laws could reduce such misuse by eliminating assumptions based on gender.
• Social Perspective:
  • Patriarchy being deeply embedded in Indian society makes it difficult to imagine that men can be subjected to violence too.
  • Male victims often face scepticism, especially if the perpetrator is a woman.
  • There is a lack of understanding that men can also be raped or harassed, sometimes even making the victim oblivious to the problem.
  • Male-on-male sexual harassment is often wrongly perceived as homosexuality, leading to exclusion and humiliation of the victim.
  • Crimes involving two women are often disregarded due to the presumption that women cannot be perpetrators of harassment or violence.
• Addressing Underreported Crimes:
  • Crimes against men and LGBTQ+ individuals, such as sexual assault or harassment, are often underreported due to societal stigma.
  • Gender-neutral laws would encourage victims to come forward without fear of ridicule or disbelief.
• Adapting to Changing Times:
  • As societal norms evolve, the legal system must reflect these changes.
  • Laws rooted in traditional gender roles are increasingly out of sync with contemporary values and realities.
     

Constitution of India

The Constitution of India, adopted in 1950, lays the foundation for equality and non-discrimination, providing the framework for gender-neutral laws. While it does not explicitly use the term "gender-neutral," several articles advocate for inclusivity and equality.

Fundamental Rights:

• Article 14: Equality before the law – It guarantees the fundamental right to equality before the law and equal protection of the laws within the territory of India. It mandates that the State cannot deny this right to any person, ensuring everyone is treated the same under the law.
• Article 15: Protection on the grounds of caste, religion, sex, race and place of birth –
  • 15(1): Prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth.
  • 15(3): Permits the State to make special provisions for women and children, encouraging inclusivity rather than exclusion.
• Article 16: Mandates equality of opportunity in matters of public employment. It prevents gender-based discrimination in the recruitment process, promoting merit-based employment.
• Article 19: These provisions guarantee freedom of speech, expression, and movement without any gender-based restrictions.
• Article 21: Guarantees the fundamental right to protection of life and personal liberty. It stipulates that no person shall be deprived of their life or personal liberty except according to a procedure established by law.
   

Directive Principles of State Policy:

• Article 39: Advocates the equitable distribution of resources and equal pay for equal work for all genders. It encourages gender parity in economic participation, highlighting the need for inclusivity in workforce policies.
• Article 39(a): Advocates that citizens of both sexes equally have the right to an adequate means of livelihood.
• Article 39(d): Ensures equal pay for equal work, addressing the wage disparity between genders.
• Article 42: Directs the State to ensure just and humane working conditions and provide maternity relief. While these provisions primarily focus on women, their principles can be extended to promote inclusivity for all genders.
• Article 44: Proposes the implementation of a Uniform Civil Code (UCC), aiming to create a common set of personal laws for all citizens, irrespective of gender or religion. The UCC has the potential to address gender biases in existing personal laws related to marriage, divorce, and inheritance.
   

Judicial Precedent:

• NALSA v. Union of India (2014): The Indian Supreme Court recognized transgender people as a third gender, affirming their right to self-identification and ensuring their fundamental rights under the Constitution. The Court also directed the government to treat transgender people as socially and economically backward classes, ensuring reservations in education and employment.
   

Protection of Children from Sexual Offences (POCSO) Act, 2012:

• Overview: The POCSO Act is one of India's most progressive laws in terms of gender neutrality, addressing the protection of minors from sexual offences.
• Key Features: The Act defines a "child" as any individual below 18 years of age, irrespective of gender. It covers a broad range of offences, including harassment, assault, and pornography, ensuring comprehensive protection for all children.
• Judicial Validation: In Rakesh v. State of NCT of Delhi (2023), the Delhi High Court emphasized the gender-neutral nature of the Act, dismissing arguments that its inclusivity led to misuse. The court reaffirmed that such provisions are essential for protecting minors across all gender identities.

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.

Criminal Law Amendment Bill, 2019
The Criminal Law Amendment Bill, 2019 marked a significant effort toward incorporating gender neutrality into India's criminal laws. Recognising the need to protect all individuals regardless of gender, the Bill aimed to address longstanding gaps in the legal framework.

Proposed Changes: It sought to make sexual offences such as rape, harassment, and stalking gender-neutral, shifting from traditional assumptions that only women can be victims and only men can be perpetrators. The Bill extended legal protections to male and transgender victims, acknowledging their vulnerability to such crimes.

Current Status: Despite its progressive intentions, the Bill remains pending, reflecting the slow pace of legislative reforms in this area. Its delay underscores the need for greater prioritization of gender-neutral laws in India.

Bhartiya Nyaya Sanhita (2023)

The Bhartiya Nyaya Sanhita, 2023 has made some changes, but not all of them are fully gender-neutral:

• Where gender neutrality is more prevalent in BNS:
  • The gender-neutral POCSO Act (Protection of Children from Sexual Offenses) already addresses sexual crimes involving minors.
  • Trafficking: Human trafficking and exploitation provisions are more inclusive, emphasizing the act and intent rather than the victim's or offender's gender.
  • In some instances, definitions of stalking and some cybercrimes have expanded to encompass victims of all genders.
     
• Where BNS is still gender-specific:
  • Section 375 IPC is replaced by Clause 63 of BNS, which deals with rape laws.
  • Continues to define rape as a crime in which a man commits sexual assault against a woman.
  • Not gender-neutral; does not include victims of rape who are male or transgender.
     

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 behavior. This Act was formed on the basis of the 'Vishaka Guidelines' given by the Supreme Court in the landmark case 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 emphasizes 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 license.
 

Landmark Cases on Gender-Neutrality

• NALSA v. Union of India (2014): This case, filed by the National Legal Services Authority (NALSA), led the Supreme Court to recognize transgender individuals as a third gender, granting them equal rights under the Constitution. The court held that gender identity is an integral part of a person's personality and the right to self-identification is an inherent part of personal autonomy and self-expression.
   
• Navtej Singh Johar v. Union of India (2018): The Supreme Court decriminalized homosexuality by partially striking down Section 377 of the Indian Penal Code, which had criminalized "unnatural offenses," including consensual same-sex relations. The court held that criminalizing consensual same-sex relationships violated Articles 14, 15, 19, and 21 of the Constitution, emphasizing that sexual orientation is an inherent part of one's identity and cannot be grounds for discrimination.
   
• Not Always Women – Men Can Be Victims Too: These 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 men and their families, resulting in malicious prosecutions that have lasted for months, if not years. K. Srinivas v. K. Sunita (2023) and Mamta v. Pradeep Kumar (2023) can be held as examples of such cases, where in both instances, 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.

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 legalizing their marriage, divorce, and adoption of children. Transgender communities would also benefit from such changes, especially if the UCC uses more gender-inclusive language.

Challenges, legal reforms and important court matters that have affected the implementation of gender-plated domestic violence laws.

1. Legal Reforms and Gender-Neutral Laws: To create more inclusive domestic violence protections, many jurisdictions have started reforming laws to be more gender-neutral. This is critical because domestic violence is not confined to one gender or type of relationship. Legal reforms are focused on broadening the scope of protection, ensuring that all victims have access to safety and justice. Some important legal reforms are:
   • Extending the Definition of Domestic Violence: A number of legal systems have broadened the definition of domestic violence to include all non-physical types of abuse, such as financial, psychological, and emotional abuse. This reform is important because it guarantees that victims of all genders can seek compensation for harms other than physical violence.
      
2. Gender-Neutral Terminology in Legal Texts: Legal systems in progressive countries and states have started adopting gender-neutral language in domestic violence laws. For example, the use of terms like "partner" instead of "husband" or "wife" is becoming more common in statutes and legal documents.
    
3. Protection Orders for All Victims: Gender-neutral domestic violence laws guarantee that people of any gender identity can obtain protection orders, including restraining orders or orders of protection. These laws emphasize the dynamics of abuse rather than the victim's or abuser's gender.
   Inclusive Shelters and Support Services: Legal reforms have also extended to support services. Many regions have worked to ensure that domestic violence shelters and services are inclusive and accessible to all victims, including transgender, non-binary, and male victims.
    
4. Legal Challenges and Obstacles: Despite the progress in legal reforms, many obstacles disrupt the complete receipt of gender-neutral domestic violence laws:
   • Cultural Resistance and Gender Criteria: In many cultures, there is still a strong belief that men cannot fall prey to domestic violence. This cultural prejudice affects the implementation of gender-neutral laws, failing to recognize male victims with some law enforcement officers and legal professionals.
   • Institutional Inertia: Legal institutions, including law enforcement and judicial systems, often work within the older structure that considers binary gender roles.
      
   Specific Challenges and Obstacles:
   • Cultural and Societal Resistance: Deeply ingrained patriarchal norms and stereotypes can lead to resistance against gender-neutral laws, with some arguing they may weaken protections for women.
   • Risk of Misuse: Opponents worry that gender-neutral laws could be exploited by perpetrators, allowing them to file counter-cases to intimidate victims.
   • Lack of Awareness: Limited understanding of diverse gender identities and the concept of gender-neutrality can hinder acceptance and implementation of inclusive reforms.
      

Need for Awareness and Education:

Raising awareness among policymakers, lawmakers, and the general public about the importance and implications of gender-neutral laws is crucial for effective implementation.
 

Recommendation to Reform Gender-Neutral Laws in the Context of Indian Law

With the growing discussions about equality, LGBTQ+ rights, and justice system reforms, gender neutrality in the law is currently an important subject in India. Although gender justice has advanced in India, many laws still assume a binary gender framework or are biased toward one gender, protecting women in most cases but failing to recognize men, transgender, or non-binary people as victims or even participants in some legal contexts.
The following are some important suggestions for changing Indian legislation to make it more gender-neutral: Sexual Offenses (Rape, Section 375 IPC)

• Present problem: Only men can commit crimes, and only women can be victims.
• Suggestion for reform:
  • Change the law to make it gender-neutral for both the offender and the victim.
  • Acknowledge sexual violence against non-binary, transgender, and male people.
  • Introduce appropriate safeguards to prevent misuse and ensure due process.
     

Domestic Violence (Protection of Women from Domestic Violence Act, 2005)

• Present problem: Only women are protected as victims by the law.
• Suggestion for reform:
  • Men and LGBTQ+ people should be added to the Act's list of possible victims.
  • Establish a system that allows both men and women in domestic relationships to seek protection.
     

Family Laws (Maintenance, Divorce, and Marriage)

• Present problem: Gender-specific roles—such as men as providers and women as dependents—are frequently assumed.
• Suggestion for reform:
  • Enact gender-neutral maintenance laws (such as Section 125 CrPC) to allow for support claims from either spouse.
  • Eliminating maternal bias and promoting equal rights in guardianship and custody.
  • Acknowledge non-heteronormative partnerships, such as same-sex partnerships.

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.

Gender-plated domestic violence laws are required to ensure that all individuals are safe from misuse, regardless of their gender identity. Legal reforms and important cases have paved the way for a more inclusive approach to the domestic violence law, but there are challenges in ensuring these laws to be fully implemented and effective.

Legal systems should continue to develop, provide equal protection for all victims and ensure that the law recognizes and supports diverse experiences of domestic violence victims. Only through continuous legal reforms, social changes and institutional readiness we can ensure that gender-plated domestic violence law provides meaningful protection to all regardless of gender.

References:

• https://lawbhoomi.com/gender-neutral-laws-in-india/
• https://www.drishtijudiciary.com/blog/need-for-more-gender-neutral-laws
• https://theamikusqriae.com/need-of-gender-neutral-laws-in-india/
• https://blog.ipleaders.in/what-are-the-laws-on-gender-neutrality-in-india/
• https://chatgpt.com/?model=auto
• Bhartiya Nyaya Sanhita 2023, Universal Law Publishing
• Indian Penal Code, Universal Law Publishing
• M. Seervai, Constitutional Law of India, Universal Law Publishing
• M. Bakshi, The Constitution of India, Universal Law Publishing
• Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, Allahabad

Written By: Shubham, 2nd Semester - College: City Academy Law College Email: [email protected]