Every human being has the right to be treated equally with dignity, no
matter what caste, gender, creed, and religion that person belongs to. Thus,
gender-neutral rights are very important in every country as it gives all the
citizens of the country the right to be treated equally with dignity. As Ubi
Jus Ibi Remedium says, for every wrong, the law provides a remedy, hence in the
Constitution of India, there are several remedies or preventive guidelines for
all the discriminations that the citizens of the country are subjected to.
Gender neutrality with respect to the victim
- It is extremely unfortunate that the Indian Law’s perception of rape is
solely based on the belief that a victim of rape has to be a woman.
- This belief completely chalks out the fact that men and transgender
people are also subjected to rape, as well as, physical assault and does not
give equal importance to the rapes and sexual assaults on men and
transgender people compared to sexual assault or rape of a woman.
- Thus, the lack of gender neutrality is evident and it is to be noted
that the punishment for such heinous crimes should be equal irrespective of
the gender of the victim. Moreover, it is assumed that the rape is entirely
an act of sex to satisfy the sexual desire of the perpetrator which has been
contradicted with the growing awareness that sexual assault is not an act of
lust but also an act of showcasing the dominance over one caste, community
- Thus, there is no reason for which men or transgender people cannot be
subjected to rape or sexual abuse.
- Similarly, the precedent from the landmark case, Vishakha and others v.
State of Rajasthan [i] safeguarded the rights of the women facing sexual assault
in the workplace but similar laws for men or transgender people has not yet been
- In State Govt. v. Sheodayal (1956),[ii] Madhya Pradesh (M.P.) The high
court opined that the modesty of a woman can be outraged by another woman under
the purview of Section 354 of IPC.
Role of the Constitution in prevailing gender neutrality in India
- The Constitution of India is the law of the land hence it has been
constituted with the responsibility to ensure the safety and security of the
citizens of the country.
- As Article 14[iii] states, The State shall not deny to any person
equality before the law or the equal protection of the laws within the
territory of India .
- Article 15[iv]of the Constitution states, Prohibition of discrimination
on grounds of religion, race, caste, sex, or place of birth.
- The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them
- No citizen shall, on grounds only of religion, race, caste, sex, place
of birth or any of them, be subject to any disability, liability,
restriction, or condition with regard to:
- access to shops, public restaurants, hotels, and palaces of public
- the use of wells, tanks, bathing ghats, roads, and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the
- Nothing in this article shall prevent the State from making any special
provision for women and children
- Nothing in this article or in clause (2) of Article 29 shall prevent the
State from making any special provision for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled Castes
and the Scheduled Tribes.
- Article 16[v] of the Constitution states, Equality of opportunity in
matters of public employment.
- There shall be equality of opportunity for all citizens in matters
relating to employment or appointment to any office under the State
- No citizen shall, on grounds only of religion, race, caste, sex,
descent, place of birth, residence, or any of them, be ineligible for or
discriminated against in respect of, any employment or office under the
- Nothing in this article shall prevent Parliament from making any law
prescribing, in regard to a class or classes of employment or appointment to
any office under the Government of, or any local or other authority within,
a State or Union territory, any requirement as to residence within that
State or Union territory prior to such employment or appointment
- Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favor of any
backward class of citizens which, in the opinion of the State is not
adequately represented in the services under the State
- Nothing in this article shall affect the operation of any law which
provides that the incumbent of an office in connection with the affairs of
any religious or denominational institution or any member of the governing
body thereof shall be a person professing a particular religion or belonging
to a particular denomination
Lack of gender neutrality in Indian Rape laws:
- According to India, Section 375[vi] of the IPC, as amended by
the Criminal Law (Amendment) Act, 2013 states that:
- A man is said to commit rape if he:
- penetrates his penis, to any extent, into the vagina, mouth, urethra or
anus of a woman or makes her do so with him or any other person; or
- inserts, to any extent, any object or a part of the body, not being the
penis, into the vagina, the urethra or anus of a woman or makes her do so
with him or any other person; or
- manipulates any part of the body of a woman so as to cause penetration
into the vagina, urethra, anus, or any part of the body of such woman or
makes her do so with him or any other person; or
- applies his mouth to the vagina, anus, urethra of a woman or makes her
do so with him or any other person,
Section 375 of the IPC solely talks about what is considered to be rape and it
is specified that it is considered rape only when the victim is a woman.
Section 377 [vii] of the IPC states:
Whoever voluntarily has carnal intercourse against the order of nature with
any man, woman or animal shall be punished with imprisonment for life, or
with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.
Section 377 talks about any unnatural intercourse with any man, woman, or
animals that are punishable up to ten years of imprisonment along with fines.
Thus, no separate defined laws have been created for men or even transgender
Gender neutral rights are not only important to prevail equality in the society
but also, it gives all human beings a sense of security. Gender neutrality when
practiced in its true sense, helps to create a balance in the society and
demolishes the sense of superiority that generally gives rise to crimes.
the sense of superiority that makes a man commit the murder of his own wife for
dowries or even raping minors to take out the grudges that the perpetrator might
have on the minor’s family, as we have seen in the Kathua Rape Case
. Thus, to
eradicate such a vague sense of power and superiority, gender neutrality should
prevail through the laws and the rights to be enjoyed by all should be truly
enjoyed by all the citizens irrespective of their gender.
- Vishakha and others v. State of Rajasthan AIR 1997 SC 3011
- State Govt. v. Sheodayal (1956 Cr LJ 83 M.P)
- Article 14 of the constitution of India
- Article 15 of the constitution of India
- Article 16 of the constitution of India
- Section 375 of the Indian Penal Code,1860
- Section 377 of the Indian Penal Code,1860