Gender Neutrality Of Criminal Laws: The BNS Dialectic

This article examines the controversial debate regarding gender-neutral criminal legislations in India, particularly in the context of sexual assault and domestic violence. It questions the fundamental conflict between the constitutional principles of formal equality (Article 14) and substantive justice for women (Article 15(3)). The analysis maps the Supreme Court’s changing jurisprudence from a patriarchal to autonomy-oriented paradigm, building up to the groundbreaking Joseph Shine judgment, which established a new benchmark for testing gender-specific legislation. A close analysis of the latest Bharatiya Nyaya Sanhita (BNS), 2023, exemplifies a landmark legislative setback from harmonization with this judicial momentum. By continuing to include the gender-specific definition of rape, the BNS defies expert advice and continues to foster a legal vacuum for male and transgender victims. This article also delves into the dichotomous “misuse versus shield” debate on domestic violence legislation, exemplified by the Supreme Court’s endeavor to find a balance between protection and procedural justice in cases such as Arnesh Kumar. Taking a lesson from a comparative study of the UK and Canada, the research discovers that legislative neutrality is no cure-all for problems of under-reporting and low conviction rates.

The paper ends by dismissing a simplistic dual solution. It supports a nuanced “third way”: keeping a gender-specific offense of “rape” to recognize its systemic character, but establishing a new, parallel, and similarly punitive gender-neutral offense of “Sexual Assault by Penetration.” It also suggests making the law of civil domestic violence (PPDVA) genderneutral. These legal changes, it contends, have to be supplemented by profound system-wide changes, such as compulsory training for police and judiciary and the building of gendersensitive victim welfare services.