Modern Justice, Missing Voices, The Push for Gender Neutrality in BNS 2023
Shivani Pawar
Legal Consultant| Legal Content Writer| Corporate & Technology Law Contract Drafting Specialist| Legal Researcher| Independent Practitioner (Advocate)
Introduction
The Bharatiya Nyaya Sanhita (BNS) 2023, introduced as a comprehensive reform to the Indian Penal Code (IPC), is a pivotal move to modernise the criminal justice system in India, which has been governed by a colonial-era law since 1860. The BNS 2023 seeks to address the changing realities of Indian society and provides an opportunity to make the legal system more attuned to contemporary values. However, while it makes strides in several areas, it notably fails to address a critical issue: the lack of gender-neutral provisions in laws related to sexual offences and other gender-specific crimes.
The need for gender-neutral provisions in the criminal law is closely intertwined with the principles of equality and non-discrimination as enshrined in the Indian Constitution. Articles 14, 15, and 21 form the cornerstone of constitutional protection in India, guaranteeing equality before the law, protection from discrimination, and the right to life and personal liberty, respectively. Article 14 mandates that all citizens shall be treated equally before the law, ensuring that no one is discriminated against on the grounds of sex, religion, caste, or other similar factors. This foundational principle obligates the State to treat all individuals equally, providing the same legal protection and remedies to every citizen, irrespective of their gender.
Article 15 further strengthens the commitment to equality by prohibiting discrimination on the grounds of sex, among other criteria, and empowers the State to make affirmative provisions for the protection of women and children. However, the BNS 2023, by excluding men and transgender individuals from its legal protection in cases of sexual offences, directly contradicts this constitutional guarantee. It marginalizes certain sections of society and perpetuates a gendered approach to victimhood, which flies in the face of the idea of equality before the law.
Moreover, Article 21 guarantees the fundamental right to life and personal liberty, which encompasses the right to live with dignity, free from all forms of abuse and exploitation. The protection from discrimination and abuse, whether based on gender, sexual orientation, or identity, is an essential facet of the right to life. The absence of gender-neutral laws in the BNS 2023 suggests a failure to fully protect the dignity and rights of all citizens, particularly those who may not conform to traditional gender norms. In this light, the State’s responsibility to safeguard citizens from all forms of violence and discrimination is evident.
The Directive Principles of State Policy further emphasize the obligation of the State to promote social and economic justice, including the protection of individuals from abuse and exploitation. Articles 38 and 39 of the Directive Principles direct the State to secure a social order in which justice, social, economic, and political shall inform all institutions of the national life. The State is also tasked with ensuring that the citizens, irrespective of their gender or identity, are not subject to abuse or exploitation. In this context, the failure to incorporate gender-neutral provisions in BNS 2023 undermines the vision of an inclusive society where every individual is protected from harm.
Thus, the BNS 2023 represents a missed opportunity to create a truly egalitarian legal framework that upholds the fundamental rights of all citizens and addresses the pressing need for gender-neutral laws in the criminal justice system. The absence of such provisions undermines the constitutional commitment to equality and protection from discrimination, and it fails to meet the State’s responsibility to safeguard all individuals from abuse, irrespective of their gender or identity.
Background
The Indian Penal Code (IPC), a product of British colonialism, has long been criticized for its lack of adaptability to the diverse and evolving fabric of Indian society. The introduction of BNS 2023 was seen as an opportunity to address these historical deficiencies and introduce a modern, more inclusive legal framework. However, the failure to incorporate gender-neutral provisions highlights the reluctance to dislodge entrenched, patriarchal notions of victimhood and criminality.
Several judicial and legislative developments emphasize the critical need for gender-inclusive provisions:
Rape
Smt. Sudesh Jhaku v. K.C.J (1996)
Delhi High Court emphasized the need to protect male rape victims under the Indian Penal Code (IPC), marking one of the first steps toward gender-neutral legal provisions. In 2013, the definition of sexual harassment was broadened to include all victims, not just females, and all forms of penetration vaginal, oral, and anal were recognized as sexual assault. Before this, rape was defined solely as penile-vaginal penetration.
Sakshi v. Union of India (1997)
This case challenges the deeply ingrained stereotypes that paint men as perpetrators and women as victims, fostering a more compassionate and inclusive understanding of sexual violence. SC Highlighted the necessity of expanding the definition of rape and sexual assault to encompass all victims, and such awareness programs can support this expansion by educating the public on the importance of recognizing and supporting all survivors.
Mukesh v. State for NCT of Delhi (Nirbhaya case)( 2012)
This case?played a key role in prompting these changes, highlighting the need for more inclusive laws for sexual violence and the criminal amendment of 2013 came into existence which strengthened the IPC, CRPC and Evidence Act but failed to provide gender-neutral laws. That review was included in the Law Commission's 172nd Report. A major step forward was the introduction of the Criminal Law Amendment Bill of 2012 in the Lok Sabha, which aimed to make Indian criminal laws more gender-neutral. Unfortunately, this bill was halted due to various challenges and issues at the time.
Transgender
National Legal Services Authority v. Union of India (2014)?
This case affirmed the rights of transgender individuals and same-sex couples, underlining the need for inclusive legal provisions. The Court stressed that gender-neutral legal frameworks are not merely desirable but essential for protecting the rights of all individuals.?
Transgender Persons (Protection of Rights) Act, (2019)
While the Act criminalizes sexual violence against transgender persons, it fails to adequately differentiate between offences and under section 18 gives sexual abuse a vague definition of offences based on severity. For example, it prescribes a maximum penalty of two years for offences like it is for outraging modesty, in contrast to the more stringent punishments provided in BNS 2023 for crimes against women. This inconsistency highlights the disparate treatment of sexual offences, undermining the principle of equality before the law.
Navtej Singh Johar v. Union of India (2018)?
This landmark ruling decriminalized consensual sexual acts between adults under Section 377 of the IPC, thereby affirming the rights of LGBTQ+ individuals. However, the judgment also spotlighted the inadequacies of existing legal provisions in addressing the complexities of non-consensual sexual acts, particularly those involving same-sex individuals.
Key Issues with BNS 2023
BNS 2023 continues to retain gender-specific language in defining sexual offences, thus confining the category of victims primarily to women. This exclusionary approach marginalizes male and transgender victims, implicitly suggesting that they are impervious to sexual crimes. For instance, the definition of rape under the BNS 2023 is gendered, focusing on the victim as a woman and ignoring the possibility of men or transgender individuals being victims of similar offences. Other crimes such as stalking, voyeurism, and sexual harassment are similarly framed in a binary context, overlooking the lived realities of diverse gender identities.
Additionally, the BNS 2023's disparate treatment of sexual offences based on the gender of the victim is stark. While it prescribes a stringent minimum sentence of ten years for the offence of rape where the victim is a woman, the Transgender Persons (Protection of Rights) Act imposes disproportionately lenient punishments for similar offences involving transgender victims. This inconsistency not only undermines the principles of justice but also exacerbates the inequality in legal protection afforded to different groups of victims.
Judicial Opinions
Several judicial pronouncements further highlight the urgency of adopting a gender-neutral legal framework:
Criminal Justice Society of India v. Union of India & Ors. (2023)?
A petition was filed in the Supreme Court seeking gender-neutral rape laws. Although the Court acknowledged the merit of the plea, it refrained from intervening, deferring to the legislature’s domain to enact such changes. This case underscores judicial awareness of the issue while highlighting the inertia of legislative bodies in enacting comprehensive reforms.
领英推荐
In?Supriyo v. Union of India?(2023)
The Supreme Court of India recently constituted a constitutional bench to hear a petition advocating for the legalization of same-sex marriages. Proponents of the petition argued that the prohibition of same-sex marriage violates Articles 14 and 21 of the Indian Constitution, which guarantee equality and the right to life and personal liberty, respectively. They referenced key judicial precedents, including the 2018 case of Shakti Vahini v. Union of India, which upheld every adult's right to make personal decisions, including those related to marriage. Advocates also proposed amending Section 4 of the Special Marriage Act, 1954, to make it more inclusive and accommodate same-sex unions. However, in its verdict on 17 October 2023, in Supriyo Chakraborty v. Union of India, the Supreme Court concluded that decisions on such matters fall under the purview of the legislature, not the judiciary, and thus declined to legalize same-sex marriage.
K. Srinivas v. K. Sunita (2014)?and?Mamta v. Pradeep Kumar (2023)
In these cases, the Supreme Court raised concerns about the misuse of domestic violence laws and the false accusations faced by men. It suggested that gender-neutral laws could help mitigate such misuse by eliminating gender-based assumptions.? This judicial pronouncement called for a broader, gender-neutral definition of sexual offences, an appeal that remains unmet in BNS 2023.
Impact of the Current Framework
The absence of gender-neutral provisions in the Bharatiya Nyaya Sanhita (BNS) 2023 has far-reaching and troubling consequences, as evidenced by two recent cases of suicide by men in 2025 who were victims of the misuse of domestic violence laws and grabbing highlights and news debates about how the current legal framework fails to provide justice to all genders. The lack of inclusivity within the law disproportionately affects male and transgender victims, leaving them without adequate legal recourse in situations of abuse or violence.
According to the National Intimate Partner and Sexual Violence Survey (NISVS) 2010 Report, men who experience rape, stalking, or physical violence by intimate partners are at a higher risk of severe health issues. This serves as a crucial reminder that men, like women, are vulnerable to sexual and domestic offences and require legal protection. Similarly, a 2023 study conducted by the International Institute of Population Sciences (IIPS), Mumbai revealed that spousal violence affects 29 per 1,000 men, with the numbers steadily increasing. Such statistics underscore the urgent need for gender-neutral laws that address the lived realities of male and transgender victims of violence.
The exclusion of male and transgender victims from legal protections perpetuates harmful societal stereotypes about gender roles and victimhood. By ignoring their experiences, the legal system reinforces the false assumption that only women can be victims, marginalizing other genders and fostering biases. This lack of recognition not only discourages male and transgender victims from reporting crimes but also creates a culture of impunity for perpetrators, further exacerbating the problem.
Moreover, the absence of gender-neutral laws is a violation of the constitutional guarantee of equality before the law. A legal framework that discriminates based on gender perpetuates an inequitable system of justice, undermining the principles of fairness and inclusivity. To address these issues, it is essential to acknowledge the vulnerabilities of all individuals, irrespective of their gender, and redefine the legal provisions to reflect a more equitable and just approach to justice.
Call for Reform
To address these systemic flaws, the following reforms are essential:
Amend BNS 2023 to Redefine Gender-Specific Crimes
To bridge the existing gaps in BNS 2023, it is essential to amend the legal framework to redefine sexual offences and other gender-specific crimes. These amendments should ensure that all genders—male, female, and transgender are recognized as both potential victims and perpetrators. And make the law more inclusive and reflective of the diverse realities faced by individuals across the gender spectrum.
Legislative Consultations for Inclusive Lawmaking
A key step toward achieving gender-neutral laws is engaging in comprehensive legislative consultations and adopting a gender-neutral approach. By establishing a team which should involve collaboration with legal experts, LGBTQ+ activists, survivor advocacy groups, and other stakeholders. By incorporating diverse perspectives, lawmakers can draft provisions that address the unique challenges faced by marginalized communities while ensuring justice and equality for all.
Nationwide Awareness Campaigns
Public education is critical to changing perceptions and reducing stigma. Launching nationwide awareness campaigns can help inform people about the significance of gender-neutral laws and the realities of male and transgender victimization. These campaigns would also encourage the reporting of crimes and foster greater empathy toward all victims, regardless of gender.
Adopting Global Best Practices
India can take inspiration from countries like Australia and Canada, which have successfully implemented gender-neutral laws for sexual offences. By studying their approaches and incorporating relevant practices, India can create a more equitable legal framework. These global examples demonstrate how inclusive laws can uphold justice and equality, ensuring protection and dignity for all citizens.
Conclusion
The Bharatiya Nyaya Sanhita (BNS) 2023 was a golden opportunity to craft a modern, inclusive legal framework that could have set the foundation for a more equitable criminal justice system. Unfortunately, by not incorporating gender-neutral provisions, it falls short of delivering justice for everyone, regardless of their gender. As society continues to progress, our laws must evolve alongside it. Now is the time for meaningful legislative reform, where the government, judiciary, and civil society collaborate to build a legal system that genuinely serves all citizens. Reform isn’t just desirable, it’s essential. It aligns with India’s constitutional principles and global commitments to human rights under the Universal Declaration of Human Rights (UDHR). The push for gender-neutral laws represents a step toward a fairer, more inclusive society, where everyone, irrespective of gender or identity, is afforded equal legal protection. The urgency for action cannot be overstated, it is the responsibility of the State and society to protect all individuals from abuse and exploitation and to uphold their rights to equality and justice.
References
Constitution of India
Bhartiya Nyaya Sanhita? Act, 2023