Law Ensuring Gender Neutrality

Recent Innovations
 Gender Neutral Law

● Gender-neutral laws are legislative measures that are

designed and implemented without any bias to the
gender or sex of individuals.

● These laws aim to ensure equality and fairness by treating all individuals equally under the law,
regardless of their gender to eliminate discrimination based on gender and promote equal rights,
opportunities, and treatment for all individuals, irrespective of their gender.

● Such laws are intended to address various areas of societal concern, including employment,
education, healthcare, family relations, and access to public services.
1. Promotion of Equality
2. Protection of Human Rights
3. Addressing Stereotypes and Bias
4. Support for Gender Diversity
5. Promoting Social Progress
6. Creating a Positive Legal
Environment
7. Coping with International
Commitments (SDGs and CEDAW).

Significance of Gender Neutrality in Law

 Evolution of Gender Neutrality in India
Pre-Independence Era: During the colonial period, gender roles in India were largely governed by
traditional customs and social norms. However, early movements for social reform, such as those
led by Raja Ram Mohan Roy and Ishwar Chandra Vidyasagar, laid the groundwork for challenging
discriminatory practices against women and advocating for gender equality.

Raja Ram Mohan Roy, Periyar EV Ramaswamy, Ishwar Chand Vidya Sagar, Jyoti Roa Phule, B.R. Ambedkar
 Constitution and Gender neutrality
Article 14 - Right to Equality:
● Guarantees equality before the law and equal protection of laws to all persons within the territory of India.
● Ensures that the State shall not deny any person equality before the law or equal protection of the laws within
the territory of India.
Article 15 - Prohibition of Discrimination:
● Prohibits discrimination on grounds of religion, race, caste, sex, or place of birth.
● Prevents the State from discriminating against any citizen on the basis of gender or any other protected
characteristic.

Very recently again in Paramjit Singh v. State of Punjab (2009), in which it was held that the policies for the
upliftment and protection of a certain gender or oppressed section of society are not discriminatory against
the rest of society. They simply protect the interests of those who have been discriminated against and
oppressed for far too long.

1. Protection of Women from Domestic Violence Act, 2005 (PWDVA):

2. Dowry Prohibition Act, 1961:
3. Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013:
4. Maternity Benefit Act, 1961:
5. Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act):
6. The Indecent Representation of Women (Prohibition) Act, 1986:
7. Prohibition of Child Marriage Act, 2006:
 Constitution and Gender Neutrality
Article 16 - Equality of Opportunity in Public Employment:
● Ensures equality of opportunity in matters of public employment.
● Prohibits discrimination in employment on grounds of sex…….etc..
Article 21 - Right to Life and Personal Liberty:
● Guarantees the right to life and personal liberty to every person.
● Includes the right to live with dignity, free from discrimination and gender-based violence.
Article 39 - Directive Principles of State Policy:
● Directs the State to ensure that men and women equally have the right to an adequate means of livelihood.
● Calls for equal pay for equal work for both men and women.
1. The Minimum Wages Act of 1948;
2. The Equal Remuneration Act of 1976;
3. The Code on Wages of 2020

Article 42 - Directive Principles of State Policy:

● Directs the State to make provisions for securing just and humane conditions of work and maternity relief.
● Aims to ensure that maternity relief is available to all women, irrespective of their employment status.
Article 51A - Fundamental Duties:
● Encourages citizens to renounce practices derogatory to the dignity of women.
● Promotes the value of gender equality and respect for women's rights as fundamental duties of citizens.
Criminal Laws and Gender Neutrality: Indian Penal Code

Obscenity Outraging the modesty of a women

● Sections 292, 293 & 294, Indian Penal Code, 1860 ● Sections 354, 354A, 354B, 354C, 354D, Indian
● Section 67 of the Information Technology Act Penal Code, 1860.
● Indecent representation of women (prohibition) Act, ● Section 509 Indian Penal Code, 1860.
1987.
Rape and Sexual Assault
Dowry Death ● Section 375, 376, 376-A-D Indian Penal Code,
● Sections 304-B, Indian Penal Code, 1860 1860.
● Section 2, Dowry Prohibition Act, 1961
Cruelty
● Section 174, Code of Criminal Procedure, 1973
● Section 498 - A Indian Penal Code, 1860.
● Section 113-A, Evidence act, 1872.
Domestic Violence.
Acid Attack
● Protection of women from Domestic Violence Act,
● Section 326-A and 326-B, Indian Penal Code, 1860
2005
(amendment 2013)
● Sections 12-29, Protection of women from Domestic
● Section 357-B and 357-C, Code of Criminal
Violence Act, 2005.
Procedure, 1973.
 Criminal Laws and Gender Neutrality: Cr.P.C.

● No hospital whether public or private can reject or deny any case of medical
examination of a rape victim
● Under all circumstances the identity and Name of a rape victim must be
protected (in either form)
● Women can not be called to police station for interrogation
● A zero FIR can be file in any police station irrespective of area FIR can be file
online as well
● No arrests of women after Sunset and before Sunrise.( arrest can be made
by a female police constable only) except in exceptional circumstances.
● Women have right to file an FIR, no matter when the incident (rape) happened
● Free legal aid to women while lodging an FIR Right to privacy while recording
the statement.
 Recent Developments in Law and Gender Neutrality

Joseph Shine v. Union of India (2018)

The Supreme Court unanimously struck down Section 497 IPC, which penalises adultery. The Court said that any
provision of law affecting individual dignity and equality of women invites wrath of constitution.

"Autonomy is intrinsic in dignified human existence. Section 497 denuded the woman from making choices. The
law in adultery is a codified rule of patriarchy. Society attributes impossible attributes to a woman, Raising woman
to a pedestal is one part of such attribution," it held.

Criminal Justice Society of India v. Union of India (2018),

Supreme Court discussed the need for gender-neutral legal provisions for rape as well as other crimes
and asked for the Government to consider it once.
Recent Developments in Law and Gender Neutrality
Federation of Obstetric and Gynecological Societies of India (FOGSI) v. Union of India
and Others (2019)

The petitioners challenged the constitutionality of provisions of the Pre-conception and

Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act (PNDT) 1994. Section
23(2) of the Act was challenged because it assumes the guilt of the alleged accused even
before his/her conviction by a competent court, thus allegedly violating the fundamental
right to liberty guaranteed under Article 21 of the Constitution.

While upholding the constitutional validity of Section 23, the Court observed that female
foeticide is the most inhumane, immoral and anti-social act. The Court said that the
PCPNDT Act is a social welfare legislation, which was conceived in light of the skewed
sex-ratio of India and to avoid the consequences of the same.
 Recent Developments in Law and Gender Neutrality
Lata Singh v. State of Uttar Pradesh and Another (2006)
The petitioner, who was an adult, left her family home to marry a man from a lower caste. Her brothers alleged that the
petitioner had been abducted. It observed that everyone has the right to marry and a definite right to choose their life partner
under the ambit of Article 21 of the Constitution. This fundamental right of any citizen cannot be violated at the instance of
another person.

Secretary, Ministry of Defence v. Babita Puniya and Others (2020)

In this case, the Supreme Court directed that Permanent Commission should be granted to women in Army. The Court held
that absolute exclusion of women from command assignments is against Article 14 of the Constitution and unjustified.
Therefore, the policy that women will be given only "staff appointments" was held to be unenforceable by the Court.

Aparna Bhat and others v. State of Madhya Pradesh and others (2021)

The Supreme Court expressed its extreme displeasure with the Madhya Pradesh High Court for asking a person accused of
sexual assault to get Rakhi tied on him by the victim as a condition for grant of bail, effectively turning molester into brother by
judicial mandate.
 Recent Developments in Law and Gender Neutrality
Hotel Priya, A Proprietorship v. State of Maharashtra and Others (2022)

The Supreme Court held that the condition imposing a gender cap on the number of women or men who can perform in
orchestras and bands in licenced bars, is unconstitutional.

Prabha Tyagi v. Kamlesh Tyagi (2022)

The Supreme Court held that every woman in a domestic relationship has a right to reside in the shared household of her
husband even after his death. The Court also held that a woman can enforce the right irrespective of whether she actually
lived in the shared household before.

Arunachala Gounder (Dead) by LRs v. Ponnusamy and Others (2922)

In this case, the Supreme Court held that even in cases prior to the Hindu Succession Act, 1956, if a property of a male Hindu
dying intestate is a self-acquired property the same would devolve by inheritance and not by survivorship, and a daughter of
such a male Hindu would be entitled to inherit such property in preference to other collaterals. The Court noted that ancient
text as also the Smritis, the commentaries written by various renowned learned persons and even judicial pronouncements
"have recognized the rights of several female heirs, the wives and the daughter’s being the foremost of them."
 Recent Developments in Law and Gender Neutrality

State of Jharkhand v. Shailendra Kumar Rai and Others (2022)

The Supreme Court held that any person found conducting the archaic two-finger test on a victim of rape or penetrative
sexual assault will be guilty of misconduct. The Court ordered a review of the curriculum in medical schools that why such
tests were being conducted even today and said that the same had no scientific basis and retraumatised victims of sexual
assault.

Deepika Singh v. Central Administrative Tribunal (2022)

In this case, the Supreme Court held that a woman's statutory right to avail maternity leave cannot be taken away for the
reason that she had availed child care leave earlier for her non-biological kids.

The Court ruled that the provisions of the Central Civil Services Rules (CCS Rules) regarding maternal leave have to be
purposively interpreted in line with the object and intent of the Maternity Benefit Act enacted by Parliament.

The Court made it clear that grant of maternity leave is intended to encourage women to join and continue in the workplace.
 Recent Developments in Law and Gender Neutrality
Akella Lalitha vs Konda Rao and Others (2022)
The Supreme Court observed that mother being the only natural guardian of the child has the
right to decide the surname of the child, as also give the child up for adoption. Thus, a
direction of the Andhra Pradesh High Court to a mother to restore her child's original
surname from his step-father's surname, was set aside by the top court.

Kamla Neti (Dead) through LRs v. The Special Land Acquisition Officer and
Others (2022)
The Supreme Court urged the Central government to consider amending Section 2(2) of the
Hindu Succession Act, which specifically excludes female members of Scheduled Tribes from
the purview of the Act.
 Recent Developments in Law and Gender Neutrality
X v. The Principal Secretary Health and Family Welfare Department, Delhi NCT Government and
Another (2022)
The Supreme Court held that provisions of the Medical Termination of Pregnancy Act (MTP Act) allowing
termination of pregnancy beyond 20 weeks and upto 24 weeks cannot be denied to a woman merely because she is
unmarried.

The Court held that Rule 3B(c) of the MTP Rules would be violative of Article 14 of the Constitution. Thus, even
unmarried women who become pregnant from consensual sexual relationships are entitled to terminate pregnancy
upto 24 weeks, the Bench held.

Aureliano Fernandes v. State of Goa and Others (2023)

The Supreme Court took strong exception to the fact that even a decade after the enactment of Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 (POSH Act), there remained serious lapses in
its effective enforcement. The Court underlined that all the state functionaries, public authorities, private
undertakings, organizations and institutions are duty bound to implement the POSH Act in letter and spirit.
 Justice not only legal but substantive too

On 23rd April, 2024, SC while hearing the plea of a woman, an assistant professor in the Government
College, Nalagarh, who said the Himachal Pradesh government had denied her child care leave to attend to
her child who is suffering from a genetic condition.
“Participation of women in the workforce is a matter not just of privilege but a constitutional entitlement
protected by Article 15 of the Constitution. The state as a model employer cannot be oblivious to the special
concerns which arise in the case of women who are part of the workforce,” the bench said in its order.
Chandrachud J. said,
“India is Moving towards justice centric approach and we cannot use law, rules to devoid people of simple
justice and nor should we move ahead as an insensitive and stern society with no compassion and empathy,
roaming around blind followers of rules.”
 New Criminal Laws in India

● New sanhita and adhiniyam are laws to ensure the protection of rights. It will aim
to give justice not punishment.
● Priority in new laws:
■ The crimes that affect the human body, priority to women body.
■ After that, the security of the country's borders has been given priority.
■ After that, electoral offences have been taken into account.
● The new law shifts its focus from the individual to the nation.
● In Bhantiya Nayaya Sanhita 2023, in 6 crimes community service has been
introduced.

In Bhartiya Nagrik Suraksha Sanhita and Bhartiya Sakshya Adhiniyam 2023, new
sections are added to facilitate the access to justice to women and to eliminate the
chances of any further trauma to women victims.
 New Criminal Laws in India

● Provisions on sexual assault on women below the age of 18 years have

been aligned with the POCSO Act which will prevent the accused from taking
advantage of the lenient provisions of the penal code.
● In case of rape of minors, life-long imprisonment or death penalty has been
mandated.
● In case of gang rapes 20 years of imprisonment or lifelong imprisonment has
been mandated. The laws have been made gender-neutral by including the
trade of minor boys as a crime.
● The police will have to register an FIR within three days if it finds merit for it in
a preliminary investigation. In cases where punishment ranges from between 3
and 7 years, the police will have to register the case within 14 days. The
medical report of rape victims will have to submitted in seven days.
 Bhartiya Nagrik Suraksha Sanhita 2023

● The BNSS has laid emphasis on digitisation of the complete process of investigation and mandatory
video recording of statements of victims of sexual offences, which was the need of the hour.

● The BNSS, in Section 43(1) Arrest of woman with special precaution.

● The BNSS, in Section 43(3), explicitly states that: “The police officer may, keeping in view the nature and
gravity of the offence, use handcuff while effecting the arrest of a person who is a habitual, repeat
offender who escaped from custody, who has committed offence of organised crime, offence of terrorist
act, drug related crime, or offence of illegal possession of arms and ammunition, murder, rape, acid attack,
counterfeiting of coins and currency notes, human trafficking, sexual offences against children,
offences against the State, including acts endangering sovereignty, unity and integrity of India or economic
offences.”

● The BNSS, Section 54. ……. if the person identifying the person arrested is mentally or physically
disabled, such process of identification shall take place under the supervision of a Magistrate who shall
take appropriate steps to ensure that such person identifies the person arrested using methods that
person is comfortable with and the identification process shall be recorded by any audio-video electronic
means.
 International Initiative for Gender Neutrality

● Convention on the Elimination of Discrimination against Women (CEDAW)

● Yogyakarta Principles of 20026 and YP +10 (GIGE) Gender Identity, Gender
Expression.
● The 2030 Agenda for Sustainable Development, adopted by all United Nations
Member States in 2015. SDG 5 is gender Equality
● International Covenant on Civil and Political Rights, 1966
● The International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966
● UDHR, 1948
The Transgender Persons (Protection of Rights) Act, 2019
2 (k) “transgender person” means a person whose gender does not match with the gender
assigned to that person at birth and includes trans-man or trans-woman (whether or not
such person has undergone Sex Reassignment Surgery or hormone therapy or laser
therapy or such other therapy), person with intersex variations, genderqueer and person
having such socio-cultural identities as kinner, hijra, aravani and jogta.
CHAPTER III RECOGNITION OF IDENTITY OF TRANSGENDER PERSONS
Section 4. Recognition of identity of transgender person.
Section 5. Application for certificate of identity.
Section 6. Issue of certificate of identity.
Section 7. Change in gender.
WAY AHEAD
● Hospitals

● Police

● Media

● Amenities

● Companionship

● School
 Mindset Correction:
● Kuki v. Meitei : Fight of Ethnicity
The Manipur State Commission for Women (MSCW) has registered 59 cases related to crimes against
women from September last year till date in the ethnic violence- hit state and handed over five such cases
taken place during the ongoing violence to the Central Bureau of Investigation (CBI) for further investigation,
MSCW chairperson Ulka Salam said on Saturday.

● ARVIND KUMAR PANDEY & ORS. Versus GIRISH PANDEY & ANR. 2022
High Court of Uttarakhand in a road accident in 2006 upheld the tribunal award of 2,5 lakhs. The family
appealed in the Uttarakhand high court for higher compensation, but their plea was dismissed in 2017. In its
order, the high court noted that she was a “homemaker” and therefore, the compensation had to be fixed
based on her life expectancy and a bare minimum notional income. SC raised to 6 lakhs.

● With 14,247 cases in 2022, Delhi registered the highest rate of crime against women and 4 % total incrtease
in such crime rate in 2023 as per NCRB.

● Farhan V State 2017: Honour Personal Laws

● Men Welfare Trust v Rit Foundation

“Gender Neutral Laws need Gender Sensitive
social approach and substantive equality to
achieve a just human survival of all.”
Thankyou

Dr. Shivani Verma,

Faculty of Law,
Delhi University