GENDER-SPECIFIC VERSUS GENDER-NEUTRAL LAWS ON SEXUAL OFFENCES: EXAMINING LEGAL GAPS IN INDIA THROUGH A COMPARATIVE STUDY WITH OTHER NATIONS

Author

Neeru, Manisha, Bhawani, Monika, Kareena


Abstract

 This paper examines whether Indian laws on sexual offences should adopt a gender-neutral approach centered on consent and the nature of the sexual act. It analyses Section 63 of the Bharatiya Nyaya Sanhita, 2023 (BNS), which defines rape in terms of a male offender and female victim, and considers whether this framework adequately protects men, transgender persons and other survivors. The study also reviews other gender-specific provisions under the BNS, the POSH Act, the Protection of Women from Domestic Violence Act and the Indecent Representation of Women (Prohibition) Act. It considers the constitutional principles of equality, dignity, privacy and personal liberty, relevant judicial decisions, and reported incidents involving male survivors. A comparative analysis of South Africa, Canada, Germany, Sweden, Finland and Denmark explores how other jurisdictions frame sexual offences around the person affected and the absence of consent. The paper argues that gender-specific definitions may leave gaps in legal recognition, accountability and access to remedies. It recommends using inclusive terms such as “person” and “complainant”; extending offence definitions and perpetrator liability across genders; addressing non-consensual sexual acts not covered by existing provisions; and providing accessible, gender-inclusive support services. The study concludes that reform should ensure equal protection for all survivors while remaining responsive to the distinct experiences and needs of women and other affected groups.



Keywords

Gender-Neutral, Equality, Sexual Acts, Survivor Protection



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References


Legislation

  • Bharatiya Nyaya Sanhita, 2023, Act No. 45 of 2023 (India).
  • Constitution of India, arts. 14, 19 and 21.
  • Criminal Code, R.S.C. 1985, c. C-46, ss. 271–273 (Canada).
  • Criminal Law (Amendment) Act, 2013, Act No. 13 of 2013 (India).
  • Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (South Africa).
  • German Criminal Code (Strafgesetzbuch), s 177 (Germany).
  • Protection of Children from Sexual Offences Act, 2012, Act No. 32 of 2012
  • Protection of Women from Domestic Violence Act, 2005, Act No. 43 of 2005
  • Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Act No. 14 of 2013 (India).
  • Indecent Representation of Women (Prohibition) Act, 1986, Act No. 60 of 1986
  • Swedish Penal Code (Brottsbalken), Chapter 6, s 1 (Sweden).

Cases

  • Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
  • Priya Patel v. State of Madhya Pradesh, (2006) 6 SCC 263.
  • Sudesh Jhaku v. K.C.J., 62 (1996) DLT 563.
  • Gantavya Gulati v. Union of India, W.P. (Crl.) 2474/2024 (Delhi High Court, Aug. 28, 2024).
  • Alakh Alok Srivastava v. Union of India, (2018) 17 SCC 291.

 

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