Gender Neutrality and Laws in India

GIBS Law Journal Vol-5, No.
GENDER NEUTRALITY AND LAWS IN INDIA

Dr Anupam Manhas*
ABSTRACT
The Indian society is patriarchal where men have a dominant position. The men are expected to protect
women, support them, care for them, earn for them and at times also decide for them. This dominant
position of men has threatened women since ages. They have been a victim of fancies of men to the extent
that the men have not hesitated to commit heinous offences on them in the name of culture, tradition and at
times the religion.This lead to the rise of feminist movements throughout the world. The awareness created
for the rights of women lead to the framing of laws to protect women. The number of cases related to
violence against women are increasing day by day. This means there are lacunas in these laws and they
need to be removed. On the other hand there are instances where the laws framed to protect the women are
Downloaded From IP - 152.58.108.160 on dated 1-Mar-2024
also being misused by them. This has caused unnecessary harassment to the men. The men, in the changing
times, are also victims. But they are deprived of justice because of the specific gender favouring laws. If the
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laws are made gender neutral, it shall be difficult for the victims of offences like domestic violence, sexual
www.IndianJournals.com
harassment and rape particularly marital rape to get justice.
Keywords: Criminal Law, Feminism, Gender Neutrality, Law, Reproductive Health.
INTRODUCTION
In words of American political activist, Gloria Steinem – “A gender- equal society would be one where the
word ‘gender’ does not exist where everyone can be themselves.”The binary interpretation of the word
‘gender’ is deeply embedded in society’s psyche, although the substance of the term resides in the fact that
it includes male, female, and transgender people. Gender neutral laws aim to provide equal punishment and
opportunity to all genders while eliminating negative discrimination. Since the medieval period in the
Indian history, the vulnerable women have been tyrannised, traumatised, and exploited, and as a result,
particular legal safeguards have been granted to them. Women now have parity with men in education,
work, and status as a result of the zealous efforts of legislators, but in the post- globalization period, the
notion of feminism has been completely misunderstood.1
In simple terms, “Gender neutrality is the idea that policies, language and other social institutions should
avoid distinguishing roles according to people’s sex or gender, in order to avoid prejudice arising from the
impression that there are social roles for which one gender is more suited than another.”2
In our culture, there is a mistaken view of the role of gender, with stereotyped beliefs such as only males
*
Associate Professor Law, Career Point University Hamirpur H.P.
1
Claire Melamed, Gender is just one of many inequalities that generate poverty and exclusion | Claire Melamed, The Guardian,
Mar. 9, 2012, https://www.theguardian.com/global-development/poverty-matters/2012/mar/09/gender-inequality-poverty-
exclusion, retrieved on 10 dec, 2021
2
Udry, J. Richard “The Nature of Gender“.Demography.Available at JSTOR 2061790, retrieved on 10 Dec, 2021.
DOI : 10.5958/2582-7529.2023.00005.4 43
GIBS Law Journal 2023
can be guardians or breadwinners and only women can be nurturers and homemakers. Because of such
views, most Indian laws are gender specific, such as family laws, which are founded on patriarchal, patrilineal,
and patrilocal culture. While the country’s criminal laws give males the role of preparator and women the
role of victim, with specific reference to sexual offences and cruelty. Gender-neutral legislation have never
been considered by legislators since, according to them, sexual offences against women only cover a small
portion of the problem.
Morally or legally, justice is crushed when on the red herring of preserving majority rights, the other minority
class’ rights (i.e. men here) are disregarded.3
Every country’s legal system is founded on its social foundation. Gender neutrality in the legal context
refers to the notion of equality in the recognition of the rights of all people, regardless of their gender. Thus,
the researcher intends to look at gender neutrality in provisions of acid attacks, sexual offences such as
sexual harassment and rape through this research paper.
We live in the twenty-first century, and as we move away from historical restrictions, the position of every
human being in today’s world has altered. Women breaking free from the four walls of their homes disrupted
societal conceptions of gender roles, leading the globe to see progress in women empowerment and setting
examples for others in their own professions. Women like as Indra Nooyi, Saina Nehwal, Mary Kom, PV
Sindhu, Aishwarya Rai, Sushma Swaraj, Mirabai Chanu, Harnaaz Kaur Sandhu and others have demonstrated
that they can not only compete with men, but often exceed them.
Many nations, including India, have neglected not only the right implications of women safety laws, but
also the notion of gender-neutral legislation in the current day, where debates and conversations on women’s
empowerment and equality have enveloped the globe in a race to establish women safety laws. 4
Gender neutrality, in ordinary parlance, would mean avoiding discrimination based on the gender or sex of
an individual.
Sex refers to “a person’s biological and physiological characteristics. A person’s sex is most often designated
by a medical assessment at the time of birth”.
Gender refers to “the roles, behaviour, activities, and attributes that a given society may construct or
consider appropriate for the categories of ‘men’ and ‘women’. It can result in stereotyping and limited
expectations about what people can and cannot do”.This distinction between the words gender and sex is
important in framing policies and also to understand the impact of the policies on the citizens of a nation.
The meaning of Gender-neutrality has always been misunderstood and often people find it synonymous to
gender-equality.5 A simple analogy to address the difference would be:
3
D. Amutha, Roots of Gender Inequality in India, SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2906950
retrieved on 10 dec, 2021
4
Pranzal Zha, Gender Equality vs. Gender Neutrality, available at https://blog.ipleaders.in/gender-equality-v-gender-neutrality,
retrieved on 10 dec, 2021.
5
Tim Newman, Sex and Gender: What is the difference?, available a thttps:// www.medicalnewstoday.com/articles/232363,
retrieved on 12 Dec, 2021.
44
GIBS Law Journal Vol-5, No. 1
Gender equality: your office hires the same number of men and women.
Gender neutrality: your office hires the best person for the job regardless of gender.
The Indian Constitution, the world’s longest, has been clear on the right of every person to equal protection
of the law, which stems from the ideology of the great struggle for independence, clearly prohibiting
discrimination amongst its citizens on the basis of religion, race, caste, sex, or place of birth.
It is true that women’s growth has not been equal in all parts of the country, and even today, one can witness
crimes against women in the country, which is horrifying to witness even after more than seventy years of
independence. To eliminate these societal evils, the country’s policies must be reframed in order to effectively
enforce sexual offence legislation. However, the topic that must be addressed is whether the country’s
current laws are intended to provide comprehensive safety to all citizens, and if these laws are enacted as a
reaction to obvious evils or as a preventative measure to even safeguard the society’s certain unseen dangers.
The next task for India is to make our laws gender-neutral. The emergence of unequal development and
crimes against women across the country, such as cases like Nirbhaya, Kathua, and veterinarian in Hyderabad,
among others, has prompted the legislature to enact various gender-specific laws. However, there have
been cases where laws for protection have been exploited as a lethal weapon, resulting in extreme
misapplication. This has raised the possibility of enacting gender-neutral legislation, as everyone, regardless
of gender, requires protection.6
Gender equality should be exhibited when the gender globe is balanced with an equal number of men and
women. To achieve this goal, government action with public support is required.
JURISPRUDENCE AND GENDER NEUTRALITY
The law comprises of logical and mental examination of the social peculiarity of regulation and equity for
the most part. Regulation is a social peculiarity and it is connected with the equity. Regulation is the piece
of the general public whether crude or present day. Regulation the two shapes and molded by the general
public. Regulation puts mental effect upon the demonstration and thinking about the populace living in the
general public. Regulation sets out the standards of direct by means of its regularizing approach. According
to the current setting of gender neutrality there is a need to safeguard the privileges and equity of the male
casualty of the lewd behavior and assault by means of viable assault regulations with punitive arrangements.
Under existing Indian overall set of laws the state of male assault regulation is very risky in nature. Criminal
regulation even won’t remember it despite the fact that equivalent provocation endured by the person in
question. Mindfulness and awareness in the general public is essential to make an aggregate feeling of
regard among the two genders. Regulation might contrast from individual ethics as in the current case the
arrangement of gender nonpartisan assault regulations are forcefully gone against by the women’s activist
activists in the country7.
6
Pranzal Zha, Gender equality vs. Gender neutrality, available at https://blog.ipleaders.in/gender-equality-v-gender-neutrality/
, retrieved on 12 Dec, 2021.
7
Abigail C. Saguy, Juliet A. Williams, A Little Word That Means A Lot: A Reassessment of Singular They in a New Era of
Gender Politics , Gender & Society, 10.1177/08912432211057921, 36, 1, (5-31), (2021), accessed on 3 April, 2022.
45
Women’s activist developments support the more female blessing regulation for the sake of women
strengthening. As this part is viewed as mistreated and taken advantage of one. So here is a need to ascend
from the mark of customary moral and correspondence approaches of women’s activists. The one of the
object of regulation is to acquire equality amongst the general public independent of the singular feeling of
profound quality. In the expressions of British legitimate scholar John Austin, “Regulation is the command
of sovereign”. As per Austin’s legitimate positivism, regulation is a social reality and reflects relations of
force and acquiescence.
This two-overlap view is that
(1) Regulation and ethical quality are discrete and
(2) That generally human-created regulations can be followed back to human officials.
As indicated by HLA Hart, regulation includes essential principles of commitment. Regulation itself holds
the component of dutifulness by individuals as upheld by the tenable dangers of discipline or other unfriendly
outcomes like authorizations throughout rebelliousness. It assumes the essential part in adjusting the attitude
and social build. The plan to enact male assault regulations is a new on across the world. It is the demand
of the period not to confine the idea of assault casualty upto the female populace.
Rape is possible of a female as well as male too. Concentrates generally in created nations show that 5-10%
of men report a background marked by adolescence sexual maltreatment, 3.6% in Namibia and 13.4% in
the United Republic of Tanzania to 20% in Peru.
The proof accessible proposes that guys might be even more uncertain than female casualties to report an
attack to the specialists. Hypothesis of Scandinavian authenticity regulation changes the way of behaving
of individuals. Scandinavians attempted to make sense of the law experimentally, liberated from powerful
component installed in the conventional definitions. By means of logical methodology it was attempted to
figure out the mental impacts brought about by the ceremonial methods of regulation settling on by Parliament
or choices of Courts. As indicated by Hagerstrom “An edified life is preposterous without regulation.
Further he accentuated upon the idea of the law, fit to direct the way of behaving of individuals. There
should be causal association between the law and the issue existing in all actuality. In the current matter
there is a need to acquire changes in the current of assault and rape laws of the country8.
Out of 96 nations contemplated, 63 have assault or rape regulations written in gender- nonpartisan language,
have assault regulations that are totally gender-explicit. (i.e., the culprit characterized as male and the
casualty as female) and 6 had halfway gender-neutral regulations (the culprit characterized as male and the
casualty can be male or female).
REASONS WHY DOMESTIC VIOLENCE CASES AGAINST MEN GO UNREPORTED:
There are many reasons for which men often do not reveal the violence they face by their spouses or by
their intimate partners.
8
Gender neutrality Archives, SCC Blog, available at https://www.scconline.com, accessed on 3 April, 2022
46
General Stereotypes against males– Men often feel discriminated against or feel uncomfortable in revelation
about the violence that they face because they feel ashamed that they will be refereed and will be labelled
as wimpy and effeminate. Men think their struggle against violence will go futile because of gender-centric
laws and provisions that are given in the Indian Constitution. Men feel that they have failed the role of
protector in nurturing their families.
a. Fear of fake cases– Men often feel that revealing the violence can cause unnecessary nuisance
and they do not want to face the legal consequences because of the gender-biased or gender-
specific laws in our Constitution. They feel that they have to leave their families and they don’t
want to lose custody of their children which is often a cumbersome process.
b. Societal and family pressure– Most of the Indians continue to live with their families even after
their marriage. Because of this factor, men feel ashamed of opening up about the violence. The
society also plays a crucial role in nurturing gender biased laws and stereotypes against a particular
gender.
c. Denial– Mostly people feel that domestic violence can only happen to a woman. And they live in
denial when they get to know that man can also be a victim of domestic violence. So, basically,
people never really want to talk about it.9
d. Psychological- Numerous women have genuine displeasure the board issues and as a result of
this they become forceful, and a verbal or actual maltreatment happens. Women confronting
pressure at working environment have disappointment and outrage due to non-satisfaction of
assumptions and in this manner can enjoy savage way of behaving. Monetary limitations because
of spouse’s unfortunate pay or potentially more pay by wife may likewise be one of the elements
prompting viciousness.
Society and its power relations, standards, and values are evolving. Men have begun sharing their misery,
torment, and badgering by women/companions. The time has come to perceive their concern as a social
and general medical problem and foster suitable procedures and mediations. They are as of now not more
grounded than women. They need assistance in emergency and family brutality: Particularly savagery by
companion is an emergency. Male casualties of brutality can be saved/helped through suitable intercession,
for example, acknowledgment of savagery against men by women as a general medical problem; helpline
for the male survivors of viciousness; and instruction, mindfulness, and lawful protections. 10
GENDER NEUTRAL LAWS IN INDIA
A common understanding of guidelines is that it incorporates a lot of contemplated courses of action,

authentic responses and mostly the social necessities. Gendered guidelines have a tested relationship with
Indian Democracy. The articulated goal for by far most Indian Legislations is gender value and in this
9
Seep Gupta, Domestic violence against men in India, available at iPleadershttps://blog.ipleaders.in›, accessed on 12 April,
2022.
10
R.R. DeRidder, & R.C. Tripathi, Norm violation and intergroup relations, (Oxford, UK: Clarendon Press) (1992), accessed
on 12 April, 2022.
47
manner gender neutrality should be embraced as a way in view of that. Anyway this commitment to achieve
gender neutrality has provoked a tangled association between the procedures and gender, as it remains an
issue for women’s lobbyist. Since, 1960’s there have been advancements towards killing ‘different treatment’
to women, this time it is the valuable chance to move it to ‘ascend to treatment’ which could be achieved by
gender fair-minded or gender-blind guidelines. Appropriately, to serve these end new guidelines which are
gender neutral and which blacklist gender-based isolation ought to be introduced. With a relative target of
identical treatment, a couple of countries have move towards proportionality model of benefits which
advance gender neutrality, furthermore two or three guidelines in India have moreover merged them. 11 The
legislative perception towards enacting these laws can be broadly categorized as:
1) Misinterpretation of women Empowerment: Women are still seen as an inferior gender by the
legislature. Women are still not considered equal to males in many places, however this can be
changed by better enforcing laws, creating beneficiary legislation for the upliftment of women in
backward regions, rather than enacting gender-specific crime laws.
2) React Attitude: In India, criminal laws regarding sexual offences are adopted or altered in response
to the occurrence of an incident. Even after being informed through multiple recommendations,
the Legislature remains hesitant to acknowledge that males might be victims of sexual offences.
The Indian legislature has an attitude of creating laws for the present without regard for future
possibilities.
According to Mr K.T.S Tulsi “Law needs to be balanced. The balance has been disturbed. All sexual
offences should be gender-neutral. Men, women, and other genders can be perpetrators and also victims of
these offences. Men, women and others need to be protected.”
172nd Law Commission Report
The commission proposed revisions to broaden the scope of the offence of rape and make it gender-neutral.
It was the first time in India that a sexual offence was viewed in such a broad and far-reaching manner.Apart
from that, changes were also recommended in sections such as 376, 376A to 376D. The report also
recommended deletion of Section 377 of IPC, proposition which was struck down in the 172nd Law
Commission Report 2000. Experts have considered legislating gender-neutral laws for about now 2 decades
ago. However, the legislature hasn’t accepted the idea in total. 12
The Justice Verma Committee Report
The Delhi Gang-Rape event occurred twelve days after the Criminal Laws (Amendment) Bill, 2012 was
introduced in Parliament. Due to the government’s national anger, the bill was withdrawn, and a three-
member committee led by former C.J. Verma was constituted on December 23, 2012. The Justice Verma
11
Pranzal Zha, Gender Equality vs. Gender Neutrality, available at https://blog.ipleaders.in/gender-equality-v-gender-neutrality,
retrieved on 3 April, 2022.
12
Flavia Agnes. “Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law.” Economic and Political Weekly, vol.
37, no.9, Economic and Political Weekly, 2002, pp. 844–47, http://www.jstor.org/stable/4411809, retrieved on 12 Dec,
2021.
48
Committee Report emphasised the need of India recognising multiple sexual orientations and advised that
transgender people be included alongside other genders, such as men and women, while crafting gender-
neutral laws.
The committee stated, “Since the possibility of sexual assault on men, as well as homosexual, transgender
and transsexual rape is a reality, the provisions have to be cognizant of the same”.13
Amendment in Criminal Law
Every law impacts the rights of every citizen (individually and collectively), and every law, once enacted,
has or will become unpopular. No law can exist in perpetuity until it is modified. A good piece of legislation,
on the other hand, can resist changing times and remain strong for a long time. If a law must be changed
frequently, it is considered weak. Post independence, various adjustments were made in terms of sexual
offences: the definition of rape was broadened; new charges such as stalking and voyeurism were added;
and a new statute was enacted to protect minors from sexual assault. These changes, however, have come
at the expense of a human life. The Indian Legislature has not been proactive in enacting crime laws for
sexual offences since independence.14

The Laws amended or enacted have been the reaction to the happening of an incident for an instant:
1 Amendment of 1983 was a reaction to the Mathura Case.15
2 Amendment of 2013 was the reaction to Nirbhaya Case.16
2 Amendment of 2018 is the reaction to the Asifa Bano Case.17
The Criminal laws (Amendment) Bill, 2012
The said bill was based on the recommendation of various committees including the 172nd Law Commission
Report of making the offence of sexual assault gender-neutral. The Bill proposed amendments in IPC,
1860, Code of Criminal Procedure, 1973 and Indian Evidence Act, 1872. The amendments ran more or less
parallel to the 172nd Law Commission report with a major addition of inserting sections 326A and 326B in
the IPC to make acid attack a specific offence. The Bill was introduced in Lok Sabha on 4th December
2012, 12 years after the recommendation of the commission.18
13
Report of the Committee on Amendments to Criminal Law. (2013). Retrieved from http://nlrd.org/womens-rights-initiative/
justice-verma-committee-report-download-fullreport, retrieved on 13 Dec, 2021.
14
Gender Neutral Legislative Drafting in India available at ...https://zenodo.org› record› files ›, retrieved on 13 Dec, 2021.
15
Tuka Ram And Anr vs State Of Maharashtra, 1979 SCR (1) 810,available at https://indiankanoon.org/doc/1092711/, retrieved
on 13dec, 2021.
16
Mukesh &Anr vs State For NCT of Delhi, 6 SCC 1,available at https://indiankanoon.org/doc/68696327/retrieved on 13 Dec,
2021.
17
Available at https://www.indiatoday.in/india/story/kathua-rape-murder-case-verdict-1546315-2019-06-11retrieved on 13 Dec,
2021.
18
The Criminal Law (Amendment) Bill, 2012, available at PRS Indiahttps://prsindia.org› billtrack›, retrieved on 12 Dec, 2021.
49
The Criminal Law (Amendment) Ordinance, 2013
The present Ordinance was the next in line after the Criminal Law (Amendment) Bill, 2012. At the backdrop
the brutal and inhuman Delhi Gang Rape, the then President Pranab Mukherjee on 3rd February 2013
exercising his powers under Article 123 (1) promulgated the Criminal Law (Amendment) Ordinance, 2013.
The said Ordinance was based on the recommendations made by the J. Verma Committee Report. Whereby
for the first time in the history of India the laws relating to sexual offences were gender-neutral. However,
as it is a temporary law, it was enforced for only fifty eight days before being repealed by the Criminal Law
(Amendment) Act, 2013 which completely ignored the neutrality aspect of the recommendation and made
gender-specific laws.19
CONCLUSION
The times have changed and so so have the gender roles. The woman these days enjoy a comparable better
status and are well aware of their rights. Many a times they take advantage of the laws framed to protect
them. It causes harassment to the men and their family members. Even if the man is let free after a legal
battle, he loses respect in the society. There is not dearth of such examples. Gender neutrality in India is still
in its initial phase. There is a need to make laws more gender neutral in the interest of justice.
19
Criminal Law (Amendment) Ordinance, 2013 http://www.manupatra.com ›, retrieved on 13 Dec, 2021.
50

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GIBS Law Journal Vol-5, No.

GENDER NEUTRALITY AND LAWS IN INDIA

harassment and rape particularly marital rape to get justice.

Keywords: Criminal Law, Feminism, Gender Neutrality, Law, Reproductive Health.

JURISPRUDENCE AND GENDER NEUTRALITY

This two-overlap view is that

(1) Regulation and ethical quality are discrete and

REASONS WHY DOMESTIC VIOLENCE CASES AGAINST MEN GO UNREPORTED:

people never really want to talk about it.9

GENDER NEUTRAL LAWS IN INDIA

A common understanding of guidelines is that it incorporates a lot of contemplated courses of action,

172nd Law Commission Report

The Justice Verma Committee Report

Amendment in Criminal Law

sexual offences since independence.14

1 Amendment of 1983 was a reaction to the Mathura Case.15

2 Amendment of 2013 was the reaction to Nirbhaya Case.16

2 Amendment of 2018 is the reaction to the Asifa Bano Case.17

The Criminal laws (Amendment) Bill, 2012

The Criminal Law (Amendment) Ordinance, 2013

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