NAVIGATING GENDER JUSTICE THROUGH GENDER NEUTRAL

LAWS

ABSTRACT

Gender justice advocates the full realization of rights and opportunities for all genders and
the abolition of gender inequities between all the genders, in all aspects. Gender neutral
legislation appears to be one approach for promoting gender justice for all genders. In
recent years, there has been a significant increase in the call for gender-neutral legislation.
The existing legislation in our country portrays male as the perpetrators of crime and the
female as the victim. Undoubtedly, the number of cases involving women as victims
outnumbers those involving men and other genders; however, the rising overall crime rates
and diverse nature of offenses, and everyone in society being equally vulnerable highlights
the need for inclusive laws that recognize the crime and the victim regardless of gender. The
current legislation seems to be "a coin without another side" at the present time. Ensuring
justice necessitates an unbiased approach that includes all individuals, regardless of whether
they meet the customary norms. The recent enactment of the Bharatiya Nyaya Sanhita
prompts reflection as to whether India squandered an opportunity to implement gender-
neutral legislation. But prior to that an important aspect that needs to be considered is
whether India is ready for such legislative changes. This article seeks to explore the
multifaceted aspects of gender-neutral legislation and the obstacles that stand in the way of
their adoption in India. It delves into the vital issue of justice being jeopardized when systems
are intrinsically prejudiced, emphasizing the necessity for legal frameworks that go beyond
restricted limitations and address the nuances of varied gender identities and experiences.
The question this paper attempts to answer is, is it time for India to follow suit, as other
countries around the world have already adopted gender neutral laws?

Key words- Gender neutral laws, Bharatiya Nyaya Sanhita, Gender Justice

INTRODUCTION

The concept of gender neutrality holds that non-discriminatory laws should treat all genders
equally. Gender neutrality in the legal context refers to the idea of ensuring equality in the
recognition of rights for every individual, regardless of gender. Implementation of gender
specific laws serves as an impediment towards achieving gender justice, which constitutes the
basic structure of the Indian constitution.

Gender justice is an essential concept that aims to ensure that every person, regardless of
gender identity, has equal access to resources, opportunities, and rights. It promotes the
acknowledgement and elimination of gender-based inequalities and discrimination, whether it
be between men and women or between individuals who identify themselves as other
genders. Gender justice challenges traditional gender norms and stereotypes in an effort to
establish equality in a variety of realms of life, such as the social, political, economic, and
legal. This notion can be achieved by the implementation of gender-neutral laws which do not
classify persons as victims or perpetrators of a crime based on their gender. The theory of
gender-neutrality advocates for the abolition of discrimination based on gender in laws and
the manner in which they are implemented. Ensuring equal access to legal protections and
rights for all citizens, irrespective of gender, is its primary objective.

Gender-neutrality in the overall structure of Indian rape legislation aims to eliminate the
gender-specific biases against rape that exist within the Indian legal system. By guaranteeing
that everyone, regardless of gender, is granted the same rights and access to justice under the
law, it seeks to remove the underlying prejudices and misconceptions surrounding rape. The
definition of "Rape" under Section 375 of the IPC, 1860 has gone through several
amendments, but it still adheres to the traditional view of rape, which maintains that
perpetrators are solely men and victims are exclusively women. To associate this heinous
crime only with men who commit it undermines the legitimacy of acknowledging that "Men
can be raped too." Apart from the offence of rape, various other sexual offences exist in India
in which the victim is considered solely a woman and not men, such as voyeurism, stalking,
and domestic violence, etc. However, there exist a number of impediments too in the
implementation of gender-neutral laws. Despite this, about 77 countries around the world
have implemented gender neutral legislations. In the Indian context, legislators have
repeatedly rejected proposals for gender-neutral laws on the grounds that most victims of
sexual offences are women. This perspective, ignores the rights of marginalised groups who
might also experience sexual assault. True justice cannot be attained when the rights of a
minority group are ignored in order to uphold the majority's perceived interests, both
ethically and legally.
DEFINITION OF GENDER NEUTRALITY

Gender neutrality in relation to victim concerns includes the notion that sexual assault can
happen to both men and transgender people. In the past, rape was simply defined as penile-
vaginal penetration1, meaning that males or transgender people cannot be deemed victims.
But a significant change broadening the definition of rape was made with the Criminal Law
(Amendment) Act of 20132. It is imperative that laws have a gender-sensitive approach
instead of disregarding gender dynamics. The stereotype of men as sexual assaulters and
women as helpless victims is not an accurate depiction of the reality of sexual assault. The
law has to be amended to recognize the need to overcome gender biases and the wide
spectrum of victims who may encounter such traumatic events. 3The notion that women can
only be victims of sexual crimes and men are the perpetrators in these acts, has its origin from
patriarchy.

Constanza Toro stresses the distinctions between gender inclusion and gender neutrality,
claiming that the former seeks to recognise and accept all genders while the latter seeks to
eradicate bias based on gender. As a guiding concept, neutrality creates the foundation for a
system that is unshakeable and ultimately aims to achieve equality. To put it simply, accepting
the idea of gender neutrality is the first step towards attaining gender equality in society. 4

India has seen a notable increase in the number of demands for the reform of antiquated laws
and regulations in recent decades. The goal of this movement is to bring these legal
frameworks into line with citizens' evolving viewpoints and successfully meet the needs of
today's society. The 172nd Law Commission report on rape laws also emphasised the need to
gender neutralise and broaden the scope of the offence in Section 375 of the IPC. However, it
becomes clear from analysing the actual application of the concept of "Gender Neutrality" in
India's rape laws—which are outlined in sections 375–376 of the IPC—that the "Equality"
principles that are deeply rooted in the basic structure of the Indian Constitution are not
strictly adhered to. Gender neutrality must be incorporated into comprehensive laws in order
to address rapes that occur between men and women or between transgender people.5
1
“The Indian Penal Code, 1860, § 375, No. 45, Acts of Parliament, 1860 (India).”
2
“The Criminal Law (Amendment) Act”, 2013, § 9, No. 13, Acts of Parliament, 2013 (India).
3
Shivanshi Gupta, “GENDER BIASED LAWS IN INDIA”, 6 JLSR 328, 333 (2020).”
4
Desikan GV, “Sex Laws and Constitutional Rights in India: A Quintessential Paradox Concerning Gender
Neutrality”, 5 IJLMH 1169, 1171 (2022).”
5
Priya Nandan, “Gender-Neutral Laws in India”, 5 IJLMH 2370, 2373 (2022).”
GENDER NEUTRALITY FROM THE VICTIM’S PERSPECTIVE

Debate continues to flare over whether or not women are capable of sexual offences.
Supporters of this theory contend that it is biologically impossible for women to rape men,
especially in a patriarchal environment, according to Susan Brownmiller. On the other hand,
those who are against the move argue that women are not physically incapable of committing
such types of crimes.6

It is unfortunate that India's current rape laws are still based on the obsolete notion that rape
primarily impacts women. This viewpoint is a result of the limited conviction that rape is just
an act motivated by the perpetrator's sexual wants. 7 Sexual assault, however, is becoming
recognised to be more than just an act of lust or desire; it also functions as a tool for
establishing the superiority or domination of one caste, class, religion, or group over another;
these assertions are often expressed through acts of humiliation and power. 8 Given this
broader understanding, there exists no rationale for disqualifying men from the potential of
experiencing sexual assault in India. Acknowledging the complex nature of sexual assault is
essential to developing a more comprehensive and inclusive legal framework that takes into
account the various ways that power dynamics might appear in these types of crimes.9 India is
also a party to several international treaties pertaining to individual rights, such as Universal
Declaration of Human Rights, etc. The aforementioned treaties protect each person's inherent
right to equality and human dignity. Unfortunately, India has chosen to intentionally
disregard its obligations under these international agreements since there are several laws that
exclusively provide protection to one gender over the other.10

Constitutional perspective

6
Apoorva Upmanyu and Anshul Rana, “Gender Neutral Laws: A critical Study”, 2 IJLRA 5, 9 (2022).
7
Shweta Kabra, “Gender Neutral Laws- How Needful in India?”, Manupatra ( March 5, 2024, 2:30 PM),
“https://docs.manupatra.in/newsline/articles/Upload/3FE150D0-E784-49BD-8328-4134C0E87955.pdf”
8
prsindia, “https://prsindia.org/policy/report-summaries/justice-verma-committee-report-summary” (last visited
March 2, 2024).
9
Ibid.
10
Priya Nandan, “Gender-Neutral Laws in India”, 5 IJLMH 2370, 2375 (2022).
According to the Indian Constitution, any law that creates classifications in an arbitrary or
unreasonable way violates individuals right to equality. 11 The classification test, which has
been recognised by the judiciary, requires such laws to demonstrate intelligible differentia
and a clear connection to their intended objective. Political reasoning and constitutional law
both recognise the idea of arbitrariness as grounds for declaring an action unconstitutional. In
the Navtej Singh Johar case12, the Supreme Court of India upheld the rule that if a law is
explicitly arbitrary, it violates Article 14 of the Constitution. An act must be clearly and
visibly unreasonable in order for it to be considered as arbitrary.13

Although a considerable section of society believes that male rape is rare, empirical data
defies this belief, demonstrating that male rape does occur in India and that a significant
number of male survivors report coercion or forced sexual relations from both men and
women. Approximately 14% of rape incidents that are reported in the United States involve
male victims, which includes both men and boys. Statistics show that 1 in 6 documented
cases of sexual assault are directed towards boys, while 1 in 25 cases of sexual assault are
directed towards men.14 These numbers refute the misconception that cases of sexual violence
against men are insignificant or uncommon and emphasise how important it is to recognise
and address such incidents. Thus, it is evident that both men and women commit sexual
assault, and it is arbitrary and unreasonable to deny victims of these crimes the same legal
remedy because of the victim's or the perpetrator's sex.

GENDER NEUTRALITY FROM THE PERPETRATOR’S PERSPECTIVE

The concept of gender neutrality with regard to perpetrators can be justified by two main
factors. First of all, gender-specific rules render the principle that "no criminal should go
unpunished" ineffective. Laws that predetermine a perpetrator's gender exclude individuals of
different genders who may be guilty of the same crime. These regulations unintentionally
give those who don't fit into the predefined categories a way out by identifying the gender of
the offender.

11
INDIA CONST. art. 14.
12
“Navtej Singh Johar v. Union of India”, AIR 2018 SC(CRI) 1169
13
“Sakshi Jain, Need for Gender Neutral Rape Laws”, 7 ACCLAIMS 1, 6-7 (2019), *Sakshi-Jain.pdf
(penacclaims.com)
14
End Sexual Violence, “https://endsexualviolence.org/where_we_stand/male-victims/” (last visited March 6,
2024).
Secondly, notable feminist scholars like Laxmi Murthy acknowledge that sexual assault is not
gender-specific. It is true that men can become victims of assault, both from other men and,
more seldom, from women. The stereotypes surrounding the dynamics of sexual violence are
called into question by the recognition that women are capable of committing acts of sexual
assault against males.15 Although there aren't numerous instances of women raping males, it
is nevertheless true that women can be perpetrators in such crimes. There are instances where
women use threats to get men to provide sexual favours, especially in formal settings. In
India, sexual harassment laws identify a woman as the victim and a man as the perpetrator.
Despite women are less likely to commit crimes, it is abundantly clear that men have been the
victims of sexual harassment at work from both male and female colleagues.16

In the Sudesh Jhaku v. KC Jhaku17 case in 1996, For the first time, Judge Jaspal Singh of the
Delhi High Court talked about the gender neutrality of rape laws. He reiterated his support for
a gender-neutral definition of rape although acknowledging that the judiciary could not offer
the remedy sought and that legislation was necessary.18

Points to high that women can be perpetrators in such crimes-

1. It is physically possible for women to rape men: In India, the notion that rape only
involves penile-vaginal penetration is not valid anymore in India. A broader range of
acts, including the insertion of objects and oral and anal penetration, are now included
in the definition of rape.19 Moreover, arousal—indicated by a penile erection—does
not imply consent, even in situations of penile-vaginal penetration. Several studies
have shown that physiologic responses, including erections, can be involuntarily
induced by emotions such as anxiety, fear, or humiliation.
2. Men have been raped by women: This argument recognises the sad reality that female
victims of rape form a greater number of incidences. However, it also underlines the
fact that men are also victims of sexual assault, which is mostly the result of other
men, though it can also happen through women. There are plenty of surveys and
empirical facts to support the claim that women do indeed rape males. This viewpoint
15
Sakshi Kulasri & Sejal Sachdeva, “Gender Neutrality: A Way to Seek Equality for all Genders”, 1 JAL&J 1, 8
(2020).
16
Joshita Jothi & Keshavdev JS, “Rethinking Rape: Should The Law Still Confine to the Paradigm?”, 2
NLUJLR 58, 72-73 (2014).
17
“Sudesh Jhaku v K C Jhaku”, 1998CRILJ2428
18
Harshad Pathak, “Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law”, 11(2) AJCL 1, 3-4
(2016).
19
“The Criminal Law (Amendment) Act”, 2013, § 9, No. 13, Acts of Parliament, 2013 (India).
 aims to emphasise how crucial it is to acknowledge a broader spectrum of sexual
assault and eliminate misconceptions regarding the gender dynamics of such types of
instances. According to information from the Office for National Statistics, the Home
Office, and the Ministry of Justice, 0.4% of all males in the UK have experienced at
least one attempted sexual offence. This corresponds to about 72,000 men who have
been victims of indecent exposure, unwanted touching, rape, and other forms of
sexual assault. Of these incidents, 12,000 were particularly connected to more serious
crimes including rape involving penetration. These numbers highlight how common
the sexual assaults against men are.20

COUNTRIES WITH GENDER NEUTRAL LAWS

Gender-neutral laws have been embraced and enacted by about 77 countries worldwide. The
United States, the United Kingdom, South Africa, and Canada are a part of these countries
because their legal systems have been updated to include gender-neutral principles.

Some countries have laws that specifically acknowledge that men can become victims of
sexual assault and rape. For instance, rape is now recognised by law in several states in the
USA as a crime that can be committed against any person, regardless of gender. Although
each state may have a different definition of rape, many of them clearly recognise that males
can become victims of both rape and sexual assault. This highlights the significance of
gender-neutral perspectives for dealing with these crimes and indicates an understanding
within legal systems that sexual violence is not restricted to a particular gender.21

United Kingdom: The definition of rape underwent an important change in 1994 when male
rape was legally recognised by English law. Regardless of the victim's gender, this change
expanded the term to include non-consensual penile-anal intercourse. The Sexual Offences
Act 2003 eventually became a law based on this recommendation. This evolution of the legal
recognition of victimization of males reflects that efforts have been made to include all the

20
Joshita Jothi & Keshavdev JS, “Rethinking Rape: Should The Law Still Confine to the Paradigm?”, 2
NLUJLR 58, 72-73 (2014).
21
LegalVidhiya, “https://legalvidhiya.com/should-sexual-offences-be-gender-neutral/” (last visited on March 6,
2024)
genders under the preview of rape laws.22However, the law does not recognise women as
perpetrators of the crime, it only acknowledges that men can be victims of rape.23

United states of America: The Uniform Crime Reporting (UCR) Program's definition of rape
was revised by the Federal Bureau of Investigation (FBI) in 2013. The revised definition now
includes oral penetration by a third party's sex organ without the victim's consent, as well as
penetration of the vagina or anus, regardless of size, with any object or body part. Rape is
now recognised under this broader definition as a crime that affects both men and women.
Additionally, by enabling information to be gathered irrespective of gender, the new
definition expands the scope of data collection for statistical purposes. Furthermore, sexual
offences involving victims who were drugged and then raped—even in the absence of
physical force—would henceforth fall within the definition of rape.24

South Africa: According to the statistics from 2020, South Africa has the unfortunate
position of having the greatest number of rape cases reported globally. Nonetheless,
legislators have passed gender-neutral laws, which is an important step towards achieving
justice and equality. The Criminal Law (Sexual Offences and Related Matters) Amendment
Act of 2007 creates a framework that is gender-neutral by explicitly designating sexual
assault and rape as offences that apply to "any person." Regarding the workplace, all
employees, regardless of their gender, are protected against sexual harassment by South
Africa's labour laws.25

Canada: Canada altered the definition of sexual offences in its Criminal Code in 1983,
making significant changes to the law. The term "rape" was notably substituted with "sexual
assault," signifying an important step in the direction of gender neutrality. Any undesirable
sexual encounter with another individual without that person's consent is now included in the

22
Philip N.S. Rumney, “In Defence of Gender Neutrality Within Rape”, 6(1) SJSJ 481, 490-491 (2007).
23
McKeever, “Can a Woman Rape a Man and Why Does It Matter?”. Criminal Law, Philosophy 13, 599–619
(2019).
24
Megha Bindal & Prakshay Shrivastava, “GENDER-NEUTRAL RAPE LAWS: ADDRESSING THE LONG-
STANDING CONUNDRUM IN INDIAN LAWS”, 8 ALPPR 119, 124-126 (2023).
25
Shweta Pathak, “A Shift from Gender Centric to Gender Neutral Criminal Laws Precepts of Equality and
Justice”, 2(1) IJLSI 174, 181-183 (2020).
revised definition. The revised definition employs the term "person" rather than using a
gender specific term, thus rendering it clearly gender-neutral. As a result, everyone is
protected from the offence of sexual assault by the Canada Criminal Code, regardless of
gender.26

NEED FOR GENDER NEUTRAL LAWS

In recent years, there has been a significant increase in the call for gender-neutral legislation. The
existing legislation in our country portrays male as the perpetrators of crime and the female as the
victim.27 Undoubtedly, the number of cases involving women as victims outnumbers those involving
men and other genders; however, the rising overall crime rates and diverse nature of offenses, and
everyone in society being equally vulnerable highlights the need for inclusive laws that recognize the
crime and the victim regardless of gender. The current legislation seems to be "a coin without another
side" at the present time.28 Ensuring justice necessitates an unbiased approach that includes all
individuals, regardless of whether they meet the customary norms.

While women in India are protected by several laws that allow them to file complaints if their rights
are violated, there is a notable difference in legal safeguards for men and the LGBTQ+ group.
Although fundamental rights are equal for people of all genders, women appear to have greater
specific articulation and safeguards. Many sections of the IPC that addresses offenses against women
portray men as perpetrators, with the LGBTQ+ and male population not receiving the same amount of
recognition or protection. The discussion of gender equality and justice includes equal legal protection
for all people, regardless of gender, in addition to guaranteeing equal rights. It is imperative to
understand the growing need of gender-neutral legislation in order to prevent crimes on all the
genders, not just women. The truth is that victims and criminals can be of any gender. Recognizing
this fact is essential to developing a legal system that provides all people with complete protection
and, in doing so, fully embodies the principles of justice and equality.

“My name is John Kelly, and I’m a survivor of rape and intimate partner violence. I was raped
twice while in college, but one of my experiences doesn’t fit into traditional definitions of rape.” 29 -

26
Dr. Devakumar Jacob, “Decoding Rape Laws: Gender Neutrality in Rape a Transnational Perspectives”, 4(1)
“East African Scholars J Edu Humanit Lit” 23, 23-25 (2021).
27
Kerti Sharma and Shipra Tiwari, “Should Sexual Offences be Gender Neutral, SCC online times”, (March
1,2024 6:47 pm) https://www.scconline.com/blog/post/2021/05/27/should-sexual-offences-be-gender-neutral
28
Shubham Priyadarshi, “A Coin Without Another Side: Voyeurism and Under-Inclusiveness ” , SCC online
times, (March 1,2024 7:12 pm) https://www.scconline.com/blog/post/2023/06/19/a-coin-without-another-side-
voyeurism-and-under-inclusiveness.
John Kelly was a student at Tufts University, who was raped by few men however according to the
conventional definition of rape he cannot be called to be raped.

16-Year-Old Boy Raped by Woman in Mumbai – Can A Man Be Sexually Assaulted? 30In this case a
minor boy was claimed to be raped by an adult woman in Mumbai however due to no provision of
rape against men it couldn't be called as a rape.

‘I Reported a Rape, Then A Policemen Raped Me’31 - A transwomen who was raped by policemen
when she went to file a complaint against rape.

“Getting your breasts touched and groped is something to be mentally prepared for before going to
a police station, even when you are a victim,”32 the 32-year-old transwoman said.

Headlines like these do make it to the news, however they are often ignored and not given heed to.
Men are not the only sufferers of this ignorance. People from LGBTQ communities time and again
face sexual violence and assault against them but they are mocked and discouraged to report the cases
of sexual assault or rape against them.8 IPC or the BNS both prescribes a minimum punishment of ten
years in rape cases against women however law governing transgenders provides no more than a
maximum of two years prison time.9

Although there are news stories addressing these kinds of problems, they frequently go overlooked
and do not receive the attention they warrant. It is not only men who bear the brunt of this disdain;
members of the LGBTQ+ community also face sexual violence and assault, but when they come to
report their instances, they are often received with mocking and discouragement. 33 For rape cases
involving women, the Indian Penal Code (IPC) and the Bharatiya Nyaya Sanhita (BNS) both stipulate
a minimum sentence of ten years. But the laws pertaining to transgender people are inadequate; the
longest sentence prescribed is two years.34 There is much of historical and mythological evidence that
India has long been home to the transgender population. Why, then, are they hardly recognized and
denied equal protection under Indian law. The need for a more comprehensive and equitable approach

29
John KELLY, “I’m a Survivor of Rape and Intimate Partner Violence–And I’m a Man”, Time (March 1,2024
7:17 pm) http://time.com/2951196/male-rape-survivor .
30
Nirmalya Dutta, “16-Year-Old Boy Raped by Woman in Mumbai – Can A Man Be Sexually Assaulted”,
India.com (March 1,2024 7:17 pm) https://www.india.com/news/india/16-year-old-boy-raped-by-woman-in-
mumbai-can-a-man-be-sexually-assaulted-337583/.
31
Jigyasa Mishra, “Raped, Mocked by Police for Seeking Justice: India’s Rape Laws Do Not Cover
Transwomen”, A14, (March 1,2024 7:37 pm) https://article-14.com/post/raped-mocked-by-police-for-seeking-
justice-india-s-rape-laws-do-not-cover-transwomen--62c65919a04a3.
32
Id. at 5.
33
Id. at 5.
34
THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019, S.18.
to legislation is highlighted by the glaring differences in the legal consequences, guaranteeing that all
victims, regardless of gender or sexual orientation, receive equal and consistent protection under the
law.

The National Integrated Biological and Behavioural Surveillance (IBBS) survey of 2014-15,
conducted by the National AIDS Control Organization (NACO) under the Ministry of Health and
Family Welfare, revealed a concerning statistic: 31.5% of transwomen reported being forced into sex
during their first sexual encounter with a male partner. This data clearly shows that crime crosses
gender barriers, affecting people of all genders.35

In India, incidences of sexual assault that deviate from the traditional male-on-female narrative are
more common than widely assumed. Although official numbers are difficult to get, well-known
feminist theorists such as Laxmi Murthy emphasize that sexual assault affects both men and women.
Murthy agrees that men can be sexually assaulted by both men and women. Similarly, women are
capable of committing sexual assault against males. 36 India's criminal laws do not appropriately
address these nuances. Even with new criminal legislation, BNS, the implementation of gender-neutral
regulations is still lacking, emphasizing a major gap in treating and preventing sexual assault instances
that defy traditional gender standards. Past judicial rulings and subsequent legislative amendments
show no sign of concentrated deliberation assessing the outlines of the opposing legal concepts. There
is scant evidence that the legislature considered the legitimate interests of all parties when it proposed
multiple revisions to the offence of rape and sexual assault under the IPC throughout time.

The Law Commission of India's 172nd Report proposed using the gender-neutral term "sexual assault"
in place of "rape" to recognize both victims and offenders of any gender. These suggestions, however,
were not enacted into legislation until 2012, when the Criminal legislation (Amendment) Bill put out a
definition of rape that was gender neutral. This proposal was strongly opposed and failed to pass. 37 The
Justice Verma Committee also promoted gender neutrality for the violation while emphasizing the
victim's viewpoint. This appeal for partial gender neutrality was well received, but it was unable to
bring about the comprehensive change that was expected, thus the legislative framework that
addresses sexual violence in a way that is inclusive of all genders remained unachieved. 38

Sexual assault is increasingly understood as a technique of asserting control, power, or superiority

across numerous social divisions such as caste, class, and religion, rather than being motivated solely
35
National IBBS 2014-15 hijras/transgender people, (March 1,2024 7:39 pm)
https://naco.gov.in/sites/default/files/TG-IBBS%20ReportPrint%20text_Edited.pdf,
36
Partners for Law in Development (PLD), Comments by Laxmi Murthy to Criminal Law Amendment Bill
2000.
37
172nd Law Commission report, (March 2,2024 8:39 am)
https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022082487.pdf .
38
Justice JS Verma, Report of the Committee on amendments to criminal law, (March 2,2024 9:49 am)
https://adrindia.org/sites/default/files/Justice_Verma_Amendmenttocriminallaw_Jan2013.pdf .
by lust or desire. This broader perspective on the causes of sexual violence emphasizes that it is a form
of power and humiliation that isn't confined to any one particular gender. The present legal framework
ignores other important societal distinctions by classifying sexual assault perpetrators and victims
exclusively based on gender. This focus raises significant concerns about whether gender should take
precedence over other important social markers when making such decisions. The statement highlights
the necessity of adopting a legal framework that is more inclusive in nature and takes into account the
intricate interactions between different identities, such as gender, caste, class, and religion, when
interpreting and addressing violent sexual behavior.
Siddharth Narrain makes an important point on the recognition of sexual assault victims other than
women, questioning the notion that the sexual humiliation suffered by transgender, men, intersex
people, and sexual minorities and states that it is no less terrible. Narrain's critical perspective calls for
a re-evaluation of society and legal attitudes regarding sexual assault, pushing for a more inclusive
understanding that acknowledges the devastating impact of such crimes on every individual's dignity
and sense of self, regardless of gender.39

Considering the possibilities of female-on-male rape is crucial when talking about rape. It is
imperative to note that it is physically possible for women to rape men. The old notion in India that
rape just entails penetration of the penile vagina is no longer accurate. A broader range of acts, such as
the insertion of objects and oral and anal penetration, are now included in the definition of rape.
Especially in situations when there is penile-vaginal penetration, it is important to recognize that
arousal, as demonstrated by a penile erection, does not equal consent. Anxiety, fear, or shame can
unintentionally cause physiological reactions like erections, as numerous studies have shown. With a
broader definition of rape, there is no basis for asserting that rape cannot be committed by a female
against a male.

The current laws pertaining to sexual harassment, voyeurism, and stalking are specifically gendered
and are aimed at safeguarding women from male offenders. As an example, the definition of stalking
in Section 354D40 of the law identifies the victim as a woman and the perpetrator as a man. According
to the definition, stalking includes a male following a woman, attempting to engage her in
conversation when she is clearly uninterested, or keeping an eye on her online activity. The fact that
men and members of the LGBTQ+ community can also be victims of stalking is ignored by this
definition. It raises the question: Can't people of any gender engage in similar actions, such following,
spying on, or continuously reaching out to someone despite obvious signs of disinterest? Further,
Section 354C41 of the law on voyeurism is also framed from a gender-specific perspective, defining
women as the victims and males as potential offenders. According to the statute, it constitutes
39
Siddharth NARRAIN, “We Dissent” Kafila.
40
Indian Penal Code,1860, S.354 D.
41
Indian Penal Code,1860, S.354 C.
voyeurism for a male to photograph or record a woman performing a private act in a situation where
the woman expects privacy and to disseminate such photos. Nonetheless, a bare reading of this section
indicates that voyeurism can affect people of any gender. The legal definition's emphasis on gender
specificity ignores the larger truth that voyeuristic acts can involve people of all gender identities in
both roles, rather than only male perpetrators and female victims.

The issue of male rape in India is not given much attention, leading to a scarcity of data on the issue.
On the other hand, a few American organizations have compiled useful statistics on male rape
instances. For example, in 2003 it was reported that men made up one in ten victims of rape. 42
Moreover, an estimated 2.78 million men in the United States have been victims of sexual assault or
rape. This information emphasizes the serious yet frequently disregarded issue of male sexual
victimization.43 These statistics highlight a stark reality that offences see no gender and emphasize the
need for gender neutral legislation.

The country's need for gender-neutral laws is also fueled by the concerning issue of women misusing
these gender specific laws. There have been more and more reports of sexual assault and fraudulent
rape cases being filed. According to the National Crime Bureau's (NCRB) crime in India report 2020,
a significant portion of rape cases that are reported are false. 44

Various judgements by the Supreme Court and High Courts also highlights the issue of increase in
false sexual assault and rape cases filed in the country. In the judgement passed by hon’ble Allahabad
High court in the case of Vivek Kumar Maurya vs. State of U.P. the court held that “genuine cases of
sexual assault have become an exception. It was further stated that since girls/women have the “upper
hand” when it comes to the protection of the law, they “easily succeed” in implicating a boy or man in

42
Catalano, S.M. (2003), National Crime Victimization Survey. U.S. Department of Justice, (March 4,2024
11:39 am) http://www.bjs.gov/content/pub/pdf/cv03.pdf .
43
Catalano, S.M. (2003), National Crime Victimization Survey. U.S. Department of Justice, (March 4,2024
12:57 pm) http://www.bjs.gov/content/pub/pdf/cv03.pdf .
44
NCRB, Crime in India 2020, Statistics Volume 1.
such cases.”45 A similar viewpoint was put forth by the hon’ble court in the case of Ajay Yadav vs.
State of U.P where the court held that “it is very unfortunate that nowadays, in "maximum cases"
women are filing false FIRs under the POCSO/SC-ST Act.”46

Punjab and Haryana high court in a recent judgement passed in the case of Savita v. State of Haryana
held that “it is disheartening that our penal laws, which were put in place to protect and defend the
survivors of sexual assaults are being used today as a weapon by certain evil-intentioned members of
society to extort money from the public for illegal gains or for taking revenge, creating fear in the
minds of the targeted people to cause injury to their honour. This cannot be allowed to go on as it
would unravel chaos in the system. It would amount to ridiculing a serious crime like sexual assault,
turning it into something frivolous, which can never be the intention of the makers of law.” 47

In the case of Manak Chand v. State of Haryana, the Hon’ble Supreme Court held that “It cannot be
lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time, a
false allegation of rape can cause equal distress, humiliation, and damage to the accused as well. The
accused must also be protected against the possibility of false implication.” 48

The judicial pronouncement from various courts highlights a significant and alarming trend in the
abuse of laws designed to protect the victims of sexual assault. These Courts's remarks highlights a
stark reality that, while laws are primarily designed to provide safeguards to victims of such heinous
crimes, they are increasingly being misused. This abuse not only diminishes the gravity of genuine
cases, but also causes unnecessary distress, embarrassment, and suffering to those wrongfully accused.
It demonstrates the growing need for gender-neutral laws in the country. The shift towards gender-
neutral legislation is critical in reducing the misuse of sexual assault laws, preserving the dignity of the
legal process, and ensuring justice is given fairly and impartially, regardless of gender.

IMPEDIMENTS IN THE IMPLEMENTATION OF GENDER-NEUTRAL LAW IN INDIA.

Sexual offences against women are much more common in our country than against men or the
LGBTQ+ community. For a long time, women have suffered from crimes, prejudice, and sexual
assault. We have seen some of the most heinous crimes committed against women, both in historical
reports and in the present. Gender-specific legislation are justified in our nation for the protection of
women due to these severe realities that exist. The question however remains: has the legislative
system pertaining to gender discrimination substantially reduced crimes against women, even after
decades of implementation? The hesitation to shift to gender-neutral rules stems from the concerns
45
Vivek Kumar Maurya v. State of U.P. And 3 Others, 2023: AHC:151058.
46
Ajay Yadav v. State of U.P., 2023 SCC Online All 601.
47
Savita v. State of Haryana 2024, LiveLaw (PH) 68.
48
Manak Chand v. State of Haryana, 2023 SCC OnLine SC 1397.
that women, who already experience a significant proportion of sexual crimes, will be left
inadequately addressed. Striking a balance between passing laws that recognize women's unique
vulnerabilities and providing justice for all is a complex and continuing challenge.

In India, there is an evident lack of data on rape incidents involving genders other than females, as
well as a major gap in data on women as offenders of sexual crimes. Many feminist organizations have
argued against a gender-neutral definition of rape, claiming that it presupposes the possibility of
women committing sexual assault on males, for which there is no empirical evidence. 49 This argument
has played a crucial role in the reluctance to embrace gender-neutral legislation. However, it is
imperative to note that the government has made minimal efforts to collect statistics on male and
LGBTQ+ sexual crime victims. This lack of initiative to thoroughly comprehend the scope of the issue
across all genders adds to the continuous debate and challenges in developing laws that protect all
citizens, regardless of gender.

Another common argument against gender neutrality in Indian rape legislation is the anticipated
negative implications of recognizing women as potential perpetrators in rape cases. Critics believe that
patriarchal society, particularly in India, may not be ready to accept a completely gender-neutral
definition of rape. The concern derives from the possibility that such a shift could result in an alarming
increase of countercomplaints made against actual women who report having been raped. Proponents
of this position argue that a gender-neutral rape law may enable men to submit fraudulent claims of
penetrative sexual assault against women. This argument firmly states that implementing a gender-
neutral strategy will open the door to bringing even more considerable trauma and humiliation to an
already marginalized sector of society, contradicting the whole objective of change.

Another common view holds that males are physically stronger than women and can protect
themselves against rape with ease; hence, the idea that a guy is incapable of defending himself is
ludicrous and unrealistic. This perspective of view adds to the ignorance about the need for legislation
against sexual assault and rape that are gender neutral. It's important to understand, though, that this
viewpoint frequently ignores the plight of the LGBTQ+ community. The argument for gender
neutrality is a more comprehensive idea that includes the safeguard of rights of all genders, rather than
being limited to the protection of men. By taking a more inclusive stance, we recognise the variety of
circumstances in which rape may occur and highlight the necessity of enacting laws that take into
account the experiences and vulnerabilities of every person, regardless of gender identity. This trend
towards gender neutrality aims to provide a legal framework that fully tackles the complex nature of
sexual assault against people of different gender identities, in addition to providing individual
protection.

49
PLD, “Submissions to Justice Verma Committee by All India Democratic Women’s Association (AIDWA) and
Women’s Groups”.
CONCLUSION

The article has delved into the pressing need for gender-neutral laws in India, with a particular
emphasis on sexual offences. The research centers on the concept of gender justice and how it might
be achieved through the implementation of gender-neutral legal frameworks. Further the concept of
"gender neutrality" has been defined, highlighting its potential importance in creating a more equal
and just society. The article gives emphasis on India's existing gender-specific laws and how it is
facing challenges amid rising crime rates and the evolving nature of offenses, rendering everyone in
society equally vulnerable. Furthermore, the article thoroughly examined the perspectives of both
victims and perpetrators, recognizing the complexities of sexual offences. Furthermore, it has
highlighted constitutional provisions in India that emphasize the necessity of gender justice, providing
a compelling rationale for the enactment of gender-neutral legislation to ensure equal protection and
justice for every citizen of the country.

In our country, the importance and necessity of gender-specific legislation cannot be less emphasized,
as they play a critical role in ensuring a safer environment for women and aiming for gender equality.
These laws provide much-needed assistance to a disadvantaged part of society. However, it is critical
to recognize that the law is dynamic and must be reviewed and altered on a regular basis to reflect the
changing demands of society and its members. The plight of all the other genders facing sexual
offences cannot be disregarded. It is critical to recognize that the goal of promoting for gender
neutrality is not to minimize the seriousness of rape, but rather to widen our understanding of the
crime beyond the usual male-on-female framework.

From the victim's perspective, portraying rape as a violation of human rights requires the state to
protect its people' bodily integrity and sexual liberty without discrimination based on gender. On the
other hand, from the perpetrator's perspective, delaying the essential and socially critical move
towards gender neutrality in rape laws in the expectation that society will ultimately shed its
patriarchal biases is unthinkable. Many victims of non-conventional sexual assaults are left without
legal recourse as a result of the law's failure to acknowledge their offender. This emphasizes the
crucial importance of legal frameworks that recognize and respect the rights and needs of all victims,
regardless of the gender.

The pervasive and deeply embedded gender stereotypes point to the false notion that men and the
concept of masculinity that goes along with it are immune to sexual assault or rape. This presumption
is currently being doubted, which means that the current laws on sexual offences need to be critically
reevaluated. To provide a more comprehensive and nuanced approach to addressing these crimes and
upholding social and legal justice, legislators must thoroughly define and classify all aspects of these
crimes.
While addressing sexual violence against men and the transgender community is critical, it should not
come at the risk of creating a detrimental setting for female rape victims. Recognizing the risk of
abuse, such as a countercomplaint by a male accused of raping a woman, the state may consider
imposing special penalties solely when a man files a malicious or frivolous rape complaint. The
urgency is in providing equal protections and protection against sexual offences to all genders,
including the LGBTQ+ population. Gender-neutral legislation demonstrates an increasing awareness
of sexual violence, recognizing that anybody, regardless of gender, can be a victim or a perpetrator.
These laws are critical in removing the antiquated preconceptions that impede justice and support for
sexual assault survivors. This shift towards gender neutrality in sexual offence laws not only adheres
to the ideals of equality and non-discrimination, but it also represents a more truthful and sympathetic
understanding of the complexities of sexual assault.