Beyond Gendered Protection: Reassessing the Need for Gender-Neutral Laws in India Through Constitutional Principles and Judicial Trends

Abstract

The debate surrounding gender-neutral laws in India raises fundamental questions concerning constitutional equality, substantive justice, individual dignity and the scope of criminal liability. Indian legislation has historically incorporated gender-specific protections to address structural discrimination and gender-based violence. However, the persistence of gender-specific definitions of certain offences has generated concerns regarding the legal recognition of male and transgender victims, the scope of protection available to non-binary persons, and the relationship between protective legislation and equality before the law. The enactment of the Bharatiya Nyaya Sanhita, 2023 (BNS), alongside contemporary judicial developments, provides a significant opportunity to reassess the adequacy of the existing framework. This paper examines the constitutional foundations of gender neutrality under Articles 14, 15 and 21 of the Constitution of India and analyses selected provisions of the BNS, the Protection of Women from Domestic Violence Act, 2005, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, and the Protection of Children from Sexual Offences Act, 2012. It critically evaluates judicial developments in National Legal Services Authority v. Union of India, Navtej Singh Johar v. Union of India, Hiral P. Harsora v. Kusum Narottamdas Harsora, Joseph Shine v. Union of India and Janshruti (People’s Voice) v. Union of India. Particular attention is given to the tension between inclusive legal recognition and the continuing justification for special measures addressing gender-based disadvantage. The paper adopts a doctrinal and analytical methodology, supplemented by relevant empirical scholarship, to argue that gender neutrality should not be understood as the universal removal of gender-specific protections. Instead, it should operate as a context-sensitive legislative principle guided by the nature of the harm, constitutional justification, equality of access to remedies and the preservation of substantive protection for vulnerable groups. The paper proposes a framework for identifying unjustified statutory exclusions and advancing inclusive, effective and constitutionally defensible legal reform.