India‘s legislative framework has long operated on a female-centric model of victim protection, developed to address deep-seated patriarchal oppression. While such statutes were necessary, contemporary realities demand an evolved and inclusive approach—one that protects all individuals, regardless of gender identity or sexual orientation.
The recent criminal law reforms via the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) were touted as progressive replacements of colonial-era laws. However, a closer analysis reveals that true gender neutrality remains elusive—particularly under BNSS.
Why Gender-Neutral Laws Are Crucial Today
- Equal Protection: Upholds Article 14 of the Constitution—equality before law.
- Intersectionality: Addresses vulnerabilities of men, boys, LGBTQIA+ individuals, and non-binary persons who face abuse.
- Corrects Legal Imbalance: Prevents reverse discrimination, misuse of female-centric laws, and promotes equitable access to justice.
Female-Centric Laws Still Prevailing
1. Section 498A IPC (Now Section 85, BNS)
- Status Quo Maintained: Continues to criminalize cruelty by husband or in-laws to a wife only.
- No Recognition: Male and LGBTQ+ victims of domestic abuse still unprotected.
- Judicial Concern: Misuse flagged in Rajesh Sharma v. State of UP (2017).
2. Section 375 IPC → Section 63, BNS: Definition of Rape
- Still Female-Centric: Only women are recognized as victims; the accused must be male.
- Exclusion of Other Genders: Transgender persons, non-binary individuals, and men continue to be invisible in the legal understanding of sexual violence.
- Critique: Despite broader rhetoric, the BNS does not modernize the rape law to be gender-neutral, unlike jurisdictions such as the UK and Canada.
3. Protection of Women from Domestic Violence Act, 2005
- No Parallel Reform in BNSS: The BNSS doesn’t address or amend this act.
- Remains Gendered: Protection available only to women, with no remedy for male or LGBTQ+ victims of domestic abuse.
4. Sexual Harassment at Workplace (POSH Act)
- Not Subsumed Under BNSS: POSH remains unchanged and applies only to women, even in gender-diverse work environments.
Critical Gaps in the BNSS and BNS: Still Not Gender-Neutral
Despite expectations, BNSS and BNS fall short on several counts:
What Was Expected
- Use of gender-neutral language (e.g., replacing “woman” with “person”)
- Equal application of laws across all genders in domestic abuse, rape, and harassment
- Modernized definitions of sexual offences and consent
What Actually Happened
- Section 63, BNS (formerly Section 375 IPC) continues to define rape in binary terms: man as perpetrator, woman as victim
- Section 85, BNS (formerly Section 498A IPC) retains gender specificity, recognizing only women as victims of domestic cruelty
- BNSS provisions on arrest, bail, and FIRs do not offer neutral procedural safeguards across gender identities
- False complaint penalties under BNSS (Section 186) exist, but are not accompanied by protective mechanismsfor male or third-gender persons facing abuse
Implications of Retaining Gender-Specific Frameworks
- Undermines Equality: Violates Articles 14 and 15 by denying equal protection to other genders
- Silences Male & LGBTQ+ Survivors: Fear of mockery, legal apathy, and societal backlash keeps many victims silent
- Judicial Overload & Misuse: Overburdened courts dealing with frivolous or retaliatory complaints under female-centric laws
What Needs to Be Done: Roadmap for Inclusive Legal Reform
- Amend the BNS & BNSS to use gender-neutral terms in all provisions concerning victims and perpetrators
- Reform rape laws to acknowledge that anyone can be a victim, and anyone can be a perpetrator, regardless of biological sex or gender identity
- Expand the scope of domestic violence laws to include “aggrieved person” instead of only women
- Launch awareness campaigns to address the social stigma faced by male and LGBTQ+ survivors
- Constitute a Gender Justice Review Commission to evaluate existing laws and recommend statutory changes
Conclusion
While the Bharatiya Nyaya Sanhita and BNSS were intended as a progressive reset of India’s criminal law, they unfortunately fall short of realizing a truly inclusive legal order. In their current form, they retain the female-centric legacy of colonial laws, offering little change beyond terminology.
For India to live up to its constitutional ideals and deliver justice beyond gender binaries, it must adopt a legal system where every citizen, regardless of identity, has equal protection and recourse.
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