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