Author:Aadyaanjali M S, Saveetha School of Law
Abstract
The pursuit of inclusive justice necessitates a critical re-evaluation of how legal systems address gender. While modern democracies emphasize equality before the law, a closer examination reveals that many laws remain steeped in gender biases—either overtly favoring one sex or failing to account for the diverse realities of all gender identities. Gender neutrality in law seeks to ensure that legal provisions apply equally regardless of one’s gender, thus promoting a more just and equitable legal framework. This article evaluates the extent to which Indian laws achieve gender neutrality, highlighting areas of progress and ongoing gaps. Through a doctrinal analysis of statutory texts, case laws, and constitutional mandates, the article argues for a recalibration of legal norms to accommodate a more inclusive vision of justice that transcends the binary view of gender.
To the Point
The legal concept of gender neutrality aims to eliminate discrimination based on gender by ensuring that laws do not favor or disadvantage any particular gender. India’s constitutional promise of equality under Article 14 is foundational to this pursuit. However, many Indian laws—particularly those related to personal status, criminal justice, and labor—have historically favored women as dependents or victims, thereby entrenching stereotypes and overlooking the rights and realities of men, transgender persons, and non-binary individuals. This article delves into the inherent tension between protective discrimination and formal equality and evaluates whether existing statutes uphold the principle of gender neutrality.
Use of Legal Jargon
Gender neutrality is legally anchored in Article 14 (Right to Equality), Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), and Article 21 (Right to Life and Personal Liberty) of the Indian Constitution. However, several legislations like Section 498A of the IPC, Section 375 (Rape), and various provisions in personal laws
reflect protective discrimination—laws that assume women to be the primary victims and men to be the accused. While such laws serve historical corrective purposes, they raise questions of substantive equality, due process, and equal protection under the law.
Further, the Transgender Persons (Protection of Rights) Act, 2019, while a step toward inclusivity, remains criticized for its limited recognition of self-determination and lack of enforcement provisions. Gender-neutral legal drafting must not only eliminate explicit gender references but also address structural biases embedded in legal interpretation and enforcement.
The Proof
Despite constitutional safeguards, numerous laws in India are not gender neutral. For instance:
Criminal Laws: Section 375 of the Indian Penal Code (IPC), which defines rape, applies only when the perpetrator is a man and the victim a woman. This excludes male and transgender victims and reinforces gender stereotypes.
Domestic Violence and Dowry Laws: Laws like Protection of Women from Domestic Violence Act, 2005 and Section 498A IPC are gender-specific and do not account for abuse faced by men or same-sex couples.
Personal Laws: Hindu and Muslim personal laws have differential standards for divorce, maintenance, and inheritance based on gender. For example, Muslim men enjoy unilateral rights of talaq, whereas women must satisfy specific grounds under Dissolution of Muslim Marriages Act, 1939.
Labor Laws: Maternity benefit laws provide comprehensive provisions for women, while there are no equivalent paternity benefits mandated for men, reinforcing the stereotype that child-rearing is solely a woman’s responsibility.
In contrast, some progressive legislations and judicial interventions are steering toward neutrality. For example, POSH Act, 2013, while originally framed to protect women, has been interpreted in some cases to include male and transgender complainants. Similarly, the Supreme Court’s verdict in NALSA v. Union of India (2014) recognized the right of individuals to self-identify their gender, mandating equal legal recognition for transgender persons.
Case Laws
NALSA v. Union of India (2014): In this landmark judgment, the Supreme Court recognized the rights of transgender persons under Articles 14, 15, 19, and 21. It held that the term ‘person’ in constitutional provisions is gender-neutral and affirmed the right to self-identify gender. The court mandated the government to take affirmative action to integrate transgender individuals into the mainstream, thus laying a constitutional foundation for gender neutrality.
Joseph Shine v. Union of India (2018): This case decriminalized adultery under Section 497 IPC, which previously punished only the male partner in an extramarital affair, absolving the woman of legal consequences. The Supreme Court struck down the provision as unconstitutional for treating women as passive subjects without agency, thereby affirming gender equality and neutrality.
Independent Thought v. Union of India (2017): In this case, the Court read down Exception 2 to Section 375 IPC to criminalize marital rape for girls aged 15–18, recognizing the autonomy and bodily integrity of the minor wife. Though it did not extend to adult women, it was a step toward recognizing sexual violence within marriage, irrespective of gender roles traditionally assigned.
Navtej Singh Johar v. Union of India (2018): The Court decriminalized consensual same-sex relations, emphasizing dignity, privacy, and equality. It underscored that sexual orientation and gender identity are intrinsic to individual identity, requiring equal protection under the law. This judgment paved the way for laws to be interpreted in a gender-neutral and inclusive manner.
Rituparna Borah v. Union of India (2022, pending PIL): In this pending petition, the petitioner challenges the gender-specificity of rape laws and calls for a gender-neutral legal framework that accounts for all survivors—men, women, and transgender persons. This reflects a growing societal and judicial concern about inclusive justice beyond the binary.
Conclusion
Gender neutrality in law is essential to achieving inclusive justice in a pluralistic society like India. While protective discrimination has played a significant role in addressing historical
gender imbalances, it cannot be the end goal. The law must evolve to reflect changing social realities and accommodate all genders without bias.
A truly gender-neutral legal system requires reform in both substantive laws and procedural frameworks. This includes revisiting the language of laws, ensuring equal access to justice mechanisms, collecting disaggregated data on gender-based violence across all genders, and providing training for legal and law enforcement personnel.
The future lies in balancing formal equality with substantive justice—ensuring laws neither perpetuate patriarchal stereotypes nor render invisible those outside the male-female binary. Only then can the ideal of inclusive justice be realized.
FAQs
What is gender neutrality in law?
Gender neutrality in law refers to the drafting and interpretation of legal provisions in a way that does not privilege or discriminate against individuals based on their gender. It seeks equal application to all, regardless of being male, female, transgender, or non-binary.
Why is gender neutrality important?
It ensures that all individuals have equal protection and recognition under the law, thereby promoting fairness and justice. It addresses gaps in existing laws that may exclude certain genders or reinforce stereotypes.
Are Indian laws gender neutral?
While the Indian Constitution promotes gender equality, many laws—especially in the criminal, personal, and labor domains—are gender-specific. Some have been reformed through judicial interpretation, but systemic reform is still needed.
What is the legal status of transgender persons in India?
The Transgender Persons (Protection of Rights) Act, 2019 provides recognition and some protections. However, it has been criticized for being poorly drafted and lacking enforcement
mechanisms. Judicial decisions like NALSA v. Union of India provide a stronger foundation for their rights.
What reforms are required to achieve gender-neutral laws?
Reforms should include:
Amending gender-specific provisions (e.g., in IPC and CrPC)
Recognizing male and transgender victims of sexual and domestic violence
Introducing equal parental benefits
Making personal laws gender-neutral
Sensitizing the judiciary and law enforcement about gender diversity
