Volume IV Issue II NYAAYSHASTRA LAW REVIEW | ISSN: 2582-8479
Beyond The Facade: Gender Bias In India’s
Reformed Criminal Law
Priyam Khajanchi, School of Law, CHRIST(Deemed to be University).*
Abstract
Health, employment, social, and political discrepancies between men and
women in India have existed for ages. The researcher wants to make an effort to
investigate the gender-specific problems in India's laws protecting women,
which solely punish men and don't provide men or another gender with any
rights in the context of the same crimes perpetrated against them. India has taken
the revolutionary step of granting transgenders the same fundamental rights as
people of the other two genders officially recognised. By making a stand about
the issue of males and transgender or other gender being the victim of rape and
other crimes, we must challenge societal preconceptions that restrict males and
transgender or other gender individuals to stereotypes and force them to conceal
their feelings.
The Indian Penal Code's laws often portray men as the perpetrators and women
as the victims. Men and all genders, including the LGBTQ+ community, are
assaulted verbally, physically, emotionally, psychologically, and sexually,
according to numerous campaigns like #MeToo and #MenToo. To decolonize
the criminal laws inherited from the British era, India has introduced three new
criminal codes: the Bharatiya Nyaya Sanhita (BNS), the Bhartiya Nagrik
Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA). These
are intended to replace the Indian Penal Code, 1860 (IPC), the Criminal
Procedure Code, 1973 (CRPC), and the Indian Evidence Act, 1872 (IEA),
respectively. The new codes propose substantial reforms, including the
consolidation and streamlining of existing IPC provisions, the introduction of
new offences related to hate speech, terrorism, and threats to national
sovereignty, unity, and integrity. They also address procedural changes, such as
timelines for investigations and trials, and provisions for trials in absentia for
absconders. Despite these advancements toward gender neutrality, the Bharatiya
Nyaya Sanhita, 2023, still falls short in addressing certain gaps.
*
The author is a final year student pursuing B.A LL.B. from School of Law, CHRIST(Deemed to be University).
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The scope of this problem is investigated, and its sources and repercussions are
highlighted. The researcher delves into analysing the existing protective laws in
India in light of gender-neutral laws and concludes by outlining the necessary
adjustments that can be made to ensure that all genders are protected equally
under the law and not just one class at the expense of another. In comparison to
gender-neutral laws, the author examines the new protective legislation in India
and makes suggestions for changes that may be implemented to guarantee that
the law suitably protects all genders.
Keywords- Gender-Neutral Laws, Rape, Sexual Violence, Domestic Violence,
Lgbtq+, Crimes Against Men, Movements, Indian Penal Code, Bharatiya
Nyaya Sanhitha.
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I. Introduction
Women are socialised to be submissive and sensitive, while males are urged to for all intents and
purposes be assertive and dispassionate. This socialisation is how gender is formed, or so they mostly
thought. When people of both sexes can express their opinions, we will achieve true gender equality.
Other genders still specifically exist in a culture where everyone worries about crime against women,
which is understandable. Are males or members of the LGBTQ community in danger of becoming
society''s forgotten gender, really contrary to popular belief. Is there any legislation that provides
protection for them? Laws to safeguard their integrity? Every life should basically be treated with
respect, and individuals of every gender should be treated equally. The Constitution of India
elucidates how the rights of the people mostly are safeguarded, and it ensures that all citizens for the
most part are given an fairly equal standing before the law. The researcher, via this study, highlights
the need for really gender-neutral laws that for all intents and purposes acknowledge crimes
committed against all genders and kind of safeguard the victims' innocence in a subtle way. The
researcher concentrates on the implication of restructuring in BNS which does not recognise sexual
offences unless they are committed against a woman. The BNS does not provide for a separate
offence to cover rape of men and transgenders. Additionally, the Bill proposes minor changes to
provisions relating to rape of women under the age of 18. It renumbers existing rape provisions and
attempts to harmonise the treatment of gang rape of minor women with the POCSO. The laws have
been recognised as being centered on women, from dowry laws to sexual offense legislation. The
notion of males or another gender becoming victims is disregarded in favour of just identifying
women as victims.1
The provisions of the BNS frequently depict males as the aggressors and women as the victims of
their crimes. According to several movements such as #MeToo and #MenToo, men and people of
all genders, including members of the LGBTQ+ community, are sexually abused in a variety of
ways, including verbally, physically, emotionally, mentally, and sexually. 2
1
Why it is time for India to consider gender-neutral rape laws (no date) Article 14.
2
Law Commission of India, 172nd Report: Review of Rape Laws (New Delhi: Ministry of Law and Justice,
Government of India, 2000)
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Nevertheless, despite having legal recognition and constitutional equality, the manner in which
transgender people are treated in society and the law, as a result of a lack of laws, indicates a violation
of their fundamental rights under Articles 14, 15(3), and 213. This is the case despite the fact that
transgender people are afforded equal protection under the law and that their gender identity is
protected by the constitution. This is because there is a lack of gender neutrality in the laws that
pertain to sexual offences. In a paradoxical turn of events, the progressive country recognises a third
gender yet does not have gender-neutral penal law covering sexual offences.
The researcher's goal is to find loopholes in the legal system by analysing the new reformed law,
large number of bills, laws, reforms, movements, committee recommendations, court judgements,
and other pieces of information. Once these holes have been identified, the researcher will provide a
number of different suggestions to fill them. The perceptions of any one gender will not be altered
by the establishment of gender-neutral standards; rather, the number of victims who seek aid and
justice will increase.
II. Gender Justice Under The New Reformed Law
The Bharatiya Nyaya Sanhitha, 2023 demonstrates its inadequacy as a modern legal system by
combining women and children into a single chapter and overlooking persistent concerns regarding
justice for transgender and queer individuals.Stating the provisions of the IPC specifically begin with
Dowry Death, in which it is stated that the death of a woman caused by any burns or for all intents
and purposes physical harm or under really normal conditions during seven years of marriage is
considered a dowry death. The spouse and any of the husband''s relatives will be held accountable
for the crime, or so they thought. The provision makes the whole family responsible for the debt,
every family member, including the ones who have done nothing wrong, actually is impacted by it,
fairly contrary to popular belief. In recent years, there basically has been a rise in instances involving
sort of false accusations.
3
Gender neutrality of rape laws (no date) International Journal of Law Management & Humanities.
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The primary driver of the widespread abuse of this legislation for the most part is that violations of
the anti-dowry statute basically are cognizable, non-compoundable, and non bailable in a definitely
big way. Even though the definition of the crime of rape specifically included in Section 375 of the
Indian Penal Code (IPC) which is now Section 63 of Bharatiya Nyaya Sanhitha (BNS) 4 generally
has been subject to basically several changes since it was first written in 1860, it nevertheless adheres
to the conventional understanding of what constitutes the crime of rape, or so they thought. The
change brought with the introduction of new provision is that earlier the age limit was 15 now it is
18.
Despite the fact that the definition of rape in the Indian Penal Code was updated to mostly include
acts of penetration kind of other than those involving penile or vaginal penetration, this definition
continues to adhere to a gender-specific conception of rape, actually contrary to popular belief. 5 This
is because it mostly is based on a predetermined characterization of the victim-perpetrator framework
that considers the genders of the parties involved. According to the provisions of Section 375 of the
Indian Penal Code (IPC)6, a man is considered to have committed the crime of rape against a woman
if he performs any of the enumerated actions on the woman's body while she is subjected to any of
the seven conditions described in the provision. In many other sections, it continues to be gender-
specific in that the victim can only be a woman, but the possibility of a woman being the offender
specifically is overlooked, even if this may generally be an extremely unusual occurrence in a subtle
way. Despite this, the victim continues to fight for their right to justice. Women who sexually abuse
men or very other women should be held to the same legal standards as those who mostly commit
traditional rape, and men who sexually assault women should be held to the same legal standards as
those who commit traditional rape. In the case of Sudesh Jhaku v. KC Jhaku, which was heard in
1996, Justice Jaspal Singh of the Delhi kind of High Court raised the question of gender neutrality
in rape legislation for the first time in a subtle way. 7
4
Bharatiya Nyaya Sanhitha, 2024 (India), s 63
5
MENON, Nivedita, “Gender Just, Gender Sensitive, Not Gender Neutral Rape Laws” Kafila
6
Indian Penal Code, 1860 (India), s 375
7
Sudesh Jhaku v. KCJ, (1996) 38 DRJ 22, 23-05-1996
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Despite the Supreme Court's landmark rulings in National Legal Services Authority v. Union of
India,8 which recognized transgender individuals as the "third gender," and in Navtej Singh Johar
v. Union of India, which decriminalised consensual same-sex relationships, there remains a
significant gap in legal protections. 9 Currently, no legislation offers protection against sexual
offences committed against men or transgender individuals.
III. Why Is There A Need For Gender-Neutral Laws?
In response to ongoing demonstrations and lobbying efforts by women organisations, lawmakers
eventually amended the Criminal Law Amendment Act10 of 1984 and 1986 to enact provisions like
as sections 498A and 304B of the Indian Penal Code. These rules were created to be strict and severe
to essentially provide maximum protection to women who were subjected to violence or harassment
at the hands of their husbands or in-laws due to dowry issues in a subtle way. The provisions were
not subject to bail, could not be cognized, and could not essentially be compounded, which
specifically is fairly significant. After the Dowry Prohibition Act of 1961 was a complete and fairly
utter failure, these measures kind of showed their particularly worth by protecting women's rights
and assisting in administering appropriate justice in a subtle way. But in recent years, a new pattern
actually has evolved in society in which women abuse these regulations to obtain an advantage over
their husbands and other members of their extended families in a subtle way. 11 However, this myth
was really busted in the case of Preeti Gupta v. State of Jharkhand 12, as well as the landmark
judgement of Arnesh Kumar v. the State of Bihar in 2014. In its 243rd Report, the Law Commission
noted that Section 498A of the Indian Penal Code which now is Section 85 and 86 of BNS 13 is the
legal provision that is most often abused, and the Supreme Court definitely has referred to this kind
of abuse as "Legal Terrorism."
8
National Legal Services Authority v. Union of India (2014) 5 scc 438
9
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
10
Criminal Law (Amendment) Act, 2013 (India)
11
LEGRAND, Camille E, “Rape and Rape Laws: Sexism in Society and the Law” (1973) 61(3) California Law
Review 919
12
Preeti Gupta v. State of Jharkhand (2010) 7 SCC 667
13
Bharatiya Nyaya Sanhitha, 2024 (India), s 85
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When it comes to crimes committed against women, we don't need data since they really are so sort
of prevalent across society, which is fairly significant. On the other hand, when it definitely comes
to crimes committed against males or any other gender, there generally is no official record or
collection of data and statistics per se. In the absence of any systemic data and because an increasing
number of men are coming forward to report that they have been the victims of violence by women,
it is essential to comprehend and investigate the problem of violence against men in addition to very
other aspects of society that for all intents and purposes are associated with gender, which is quite
significant.
Similar to this, Alternative Law Forum recommended in its recommendations to the JVC that the
definition of a victim be expanded from a "woman" to a "person" to protect persons who particularly
are harmed according to their gender identification. This basically was done to stop violence towards
transgender individuals, or so they thought. It had acknowledged, in particular, that sexual violence
is always gendered and definitely is perpetrated against people based on their gender, which is quite
significant.14 It basically has been taken into account that sexual assault actually is always gendered.
Therefore, everyone who is seen to mostly be defying gender norms is at danger of sexual assault,
not only women, which is quite significant. This risk extends to anyone who meets this criteria. This
group includes transgender people who change from being a woman to a man, as well as hijras,
kothis, effeminate gay males, and anybody else who deviates from accepted gender presentation
standards. Our concept, which generally has its roots in the unique literally chronicles of bias, seeks
to increase the extent of protection provided to disadvantaged groups in a subtle way. 15
The Constitution states that by doing this, the framers "indicate realization on the part of the framers
that uniformly enforced legal equality would perpetuate the existing structural differences. The
State"must not generally deny to any generally individual within the territory of India, equality
before the law or the equal protection of the laws," according to Article 14 on the one hand, sort of
contrary to popular belief. According to Article 15(1), "the State must not generally discriminate
against any Citizen on the ground of religion, race, caste, sex, place of birth, or any combination of
such grounds." Nothing in Article 15(3), however, "shall literally prevent the State from making any
14
Parliamentary Standing Committee, 167th Report on the Criminal Law (Amendment) Bill, 2012
15
Gender Neutral Statutory rape laws (2021) HeinOnline.
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particular provision for Women and Children," according to the text.
Thus, it expressly grants the State the right to enact any specific legislation for women and children,
"even in violation of the fundamental ban against discrimination among citizens, including on the
basis of sex." The clause is presently under criticism for having a severe gender bias since it treats a
married woman's status virtually like her husband's property. 16 Even with the reformed law, there is
still no inclusion of marital rape in any provisions. However, because both of them committed the
crime, only one of them specifically is accountable for it while the other generally is free from
punishment. It seems to definitely be founded on an assumption held by society in a subtle way.
Normal criminal law for the most part is gender-neutral, but as far as we can tell, this clause does
not adhere to that principle laid down in Union of India v. Joseph Shine. 17
In the case of People v. Liberta, which was heard in 1984, the Court of Appeals of New York State
was presented with a challenge to the constitutionality of various provisions of New York's Penal
Code, one of which stated that "a male is guilty of rape in the first degree when he engages in
sexual intercourse with a female by forcible compulsion."18 This provision stated that "[a] male is
guilty of rape in the first degree when the defendant asserted that since the clause did not treat both
genders equally, it violated the constitutionally guaranteed right of individuals to equality before
the law. The court decided that the defendant's argument had some validity and reached the
following conclusion as a result: Section 130 of the Penal Law violates equal protection because
it applies to males who forcibly rape females but exempts females from criminal liability for
forcible rape of males.... The court found that the defendant's argument had some validity and
reached this conclusion. The fact that the act of a female forcibly raping a male may be a difficult
or rare occurrence does not mean that the gender exemption satisfies the constitutional test; a
gender-neutral law would unquestionably serve the objective of discouraging and punishing
forcible sexual assaults better, even if only marginally.
Making gender-neutral rules will not change how one gender perceives things; instead, it will
definitely help much more victims basically seek assistance and justice. Nowadays there actually are
various cases where women use the laws that were intended to safeguard them from the wrongs they
kind of have committed against themselves as a shield to actually protect them. "
16
“Feminist Law Archives: Justice Verma Committee 2013”
17
Joseph Shine v. Union of India, (2019) 3 SCC 39
18
People v. Liberta, 64 [N.Y.2d] 152
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The mere fact that the provision is lawful and within the scope of the government's authority does
not give shady actors permission to engage in harassment or personal vendettas,". By abusing the
rule in question, a new kind of legal terrorism may be initiated. The provision is meant to be used as
a shield, and not as a weapon, by those who violate it. In issues pertaining to dowry-related tortures,
deaths, and brutality, they are unable to adhere to any predetermined method or formula.
If the scream of "wolf" is shouted too often as a joke, aid and protection may not be offered when
the real "wolf" shows up.
IV. India’s Path Forward: Gender Rights And Legal Challenges
In the twenty-first century, India has publicly stated its intention to strive toward gender equality and
gender neutrality.Despite the introduction of the BNS, which aimed to make provisions more gender-
neutral by replacing terms like ‘man’ with ‘person’ and updating terminologies and scope, traditional
gender role assumptions remain largely unchanged. 19 The BNS has faced criticism for perpetuating
the existing status quo, with some likening it to "old wine in a new bottle." While the IPC's definitions
of "gender" under Section 8 and "man" and "woman" under Section 10 were previously limited,
excluding transgender persons, the BNS has expanded the definition of "gender" under Section 10
to include them.20 This is a significant step forward for civil rights; however, it still falls short in
offering protection from sexual offences. While the BNS does include transgender persons in its
definition of "gender," aligning with the Transgender Persons (Protection of Rights) Act, 2019, it
has been criticized for not adequately addressing violence against transgender and queer individuals
in its provisions related to sexual offences.
In spite of this, the court continues to definitely ignore the concept of "gender neutrality" while
considering crimes involving sexual offences and other statutes included under the Indian Penal
Code, or so they specifically thought. India has taken the extraordinary step of providing persons
who identify as transgender the same basic rights as those who essentially identify as either male or
female in a subtle way. This comes as a result of the country''s formal recognition of basically male
and female as the two genders that mostly exist. They have the same rights as definitely other victims,
19
Bharatiya Nyaya Sanhitha, 2024 (India), s 8
20
Bharatiya Nyaya Sanhitha, 2024 (India), s 10
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and it is necessary to for all intents and purposes treat them as such, kind of contrary to popular
belief. By taking a position on the subject of rape against men and transgender or other gender folks,
we must fight the misconceptions that exist in our society. These preconceptions drive individuals
21
of these gender identities to literally conform to stereotypes and keep their emotions bottled up.
The crime of honour killing is one example of a kind of violent crime that does not discriminate on
the basis of gender since both the perpetrators and the victims might be members of any gender.
According to the Constitution, every individual who has the status of citizen in India is accorded the
same legal standing. Laws against sexual violence, such as rape, stalking, assault, and sexual
harassment, need to protect persons of all gender identities, including men, women, and the
community of transgender people. This is the logical conclusion that follows from the previous
statement.22
However, according to the experts, there is a concern that is warranted, and that is the concern that
any changes to the norms that regulate sexual assault must not be damaging for the most vulnerable
part of society, which is women. Nevertheless, despite having legal recognition and constitutional
equality, the manner in which transgender people are treated in society and the law, as a result of a
lack of laws, indicates a violation of their fundamental rights under Articles 14, 15(3), and 21. This
is the case despite the fact that transgender people are afforded equal protection under the law and
that their gender identity is protected by the constitution (4). This is because there is a lack of gender
neutrality in the laws that pertain to sexual offences. In a paradoxical turn of events, the progressive
country recognises a third gender yet does not have gender-neutral penal law covering sexual
offences.
Women have consistently been the targets of sexual assault throughout the whole of human
existence. Consequently, if we are unable to make the law totally gender neutral without taking into
consideration certain historical circumstances and gender stereotypes — both of which are actually
used to excuse acts of violence against women — then we should acknowledge that we are unable
to do so. If India's laws on sexual assault were modified in this way, the laws would become gender
equitable and gender sensitive, but they would not become gender neutral as a result of these
modifications.
21
VIPRA, Jai, “A Case for Gender Neutral Rape Laws in India” (2013) Centre for Civil Society Working Paper No
286 1
22
PATHAK, H. (2016) Beyond the binary: Rethinking gender neutrality in Indian rape law: Asian Journal of
Comparative Law, Cambridge Core. Cambridge University Press.
pg. 10
