The Need for Gender Neutrality in Sexual Harassment and Rape laws in India

AUTHOR: Rubbal, Campus Law Centre, Faculty of Law, New Delhi

From various generations it was thought that women are the only ones subjected to sexual harassment and rape because of societal unawareness. It was thought that women are the weaker sex and hence are more vulnerable to such offenses. They were usually the less dominating gender. But with the changing society and increased awareness, it is found that sexual harassment is not just limited to women and other gender are also a victim to it. With women acquiring more dominating roles in society and the workplace, the roles are reversed. However, there is a discrimination when it comes to providing protection and acknowledging the fact that Men and LGBTQ+ can also fall victim to such harassment. This Article addresses the inadequacy in providing legal safeguards and drawbacks of our legislation to protect these individuals. It draws upon significant sections of our legislation to show its lacunas. This research provides different reports about the harassment at workplace and cases to introduce alterations in definitions to make the law gender neutral. 

Gender neutrality, Sexual Harassment, Rape, Legislation, society.

Sexual offenses in India are defined in various laws and provisions but all those provisions are cantered towards women. There are very few to no provisions dealing with the cases related to Men and other non-gender specific people. With the changing society, where the need of the hour is to introduce newer law reforms to cater the needs of the society, we are still lagging behind. We need to understand that the victims of sexual offenses are not just limited to women, but there is a broader aspect to it. Gender Neutrality guarantees equal and fair treatment to all. 

With the landmark judgement of Supreme Court in Vishakha and others vs State of Rajasthan case in 1997, Vishakha guidelines were introduced which were later superseded by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act{1}. These act focuses on the protection of sexual harassment of “women” in workplace. To be fair does the word sexual harassment refers only to women? Can Men or other non gender specific people ever be harassed? If it can happen then why only women are the ones who are protected. Not only this various other laws like section 375, 376 of IPC now section 63,64 in BNS deals with Rape provisions which clearly states “A man is said to commit “rape”….on a women” and “whoever commits rape on women”, Section 354 of IPC now section 74 in BNS defines outraging the modesty of a “women”, section 509 IPC now section 79 in BNS “word, gesture or act intended to insult the modesty of woman”. All these laws except one in section 377 IPC which provides for unnatural offenses include man which is now very unfortunately excluded from the newly formed BNS Bhartiya Nyaya Sanhita{2}. 

Legislation’s like the POSH Act and Rape provisions are silent on male or LGBTQ+ community. 

According to Equal Employment Opportunity Commission Data, Men filed 21.8% of sexual harassment charges between 2018 and 2021. According to a National Commission Research from 2022, 1.4% of males in India had experienced sexual harassment, and 3,000 incidences of sexual assault on men were documented in India in 2022{3}. 

LGBTQ+ people face a lot more harassment, they are asked for sexual favors and various sexually related remarks, demeaning remarks are passed, yet there is no legislation to safeguard their rights and dignity in the society. A survey conducted by THE GUARDIAN in 2019 revealed that 70% of LGBT People are sexually harassed at work{4}. In a country with the longest written constitution and constitutional safeguards present it is a shame that still there are lacunas in many provisions of law. Article 14 of the constitution

provides for equality to all but when we look at the overall picture, our legislative machinery still lacks. 

Justice Verma committee which was formed after Nirbhaya rape case 2012 suggested changes in rape law in India. However, these recommendations were not accepted and criminal law (amendment) act, 2013 only made the law on rape more rigid and ignored the plea for gender neutral sexual offences{5}. 

Most people subject male to masculinity and LGBTQ+ people to a different community where they think these people are subordinate to them, and they can ask for sexual favors and pass sexually coloured remarks. Most believe that females cannot dominate a male and even if she tries to, men don’t feel intimidated. However this is just a patriarchal mindset. Harassment at the workplace is more of power dominance where a person who is superior in post intimidates the inferior and there are many instances where men in fear of losing their job, submit to such harassment. It is a stereotype that women are perennial victims and men are perennial perpetrators. 

Most men, in fear of society, don’t come forward to report such harassment. This was the case of female on male harassment but the case where men are subjected to men on men harassment, they fear of being labeled a different sexual orientation. 

In Navtej Singh Johar vs Union of India, the Supreme Court decriminalized Homosexuality and it was stated that “The discrimination on the ground of sex under article 15 and 16, includes discrimination on the ground of gender identity{6}. According to a report on LGBTQ people’s Experiences of Workplace Discrimination and Harassment, it was found that 37.7% of LGBTQ employees have experienced at least one form of harassment at work because of their sexual orientation or gender identity at some point in their lives{7}. In Binu Tamta vs High court of delhi it was reasoned that the definition of aggrieved women does not include a person from LGBTQ+ community, and there are no regulations where a remedy can be sought in case of sexual harassment{8}. 

In Sakshi vs Union of India which led to The 172nd law commission of India report focused on the need to review the rape laws in the Indian penal code. Several amendments were proposed by the petitioner one of which were to substitute the definition of ‘rape’ with the

definition of ‘sexual assault’ and make it more gender neutral. However, they were later rejected{9}. 

While the laws for protection of women from sexual offenses still have their own drawbacks, many fear that providing protection to other not so vulnerable groups will shift the focus from the major issue of women protection. However, the right to equality should be available to everyone, the focus is not to change the whole legislation but to introduce little changes like changing the term to “person” rather than women for more gender inclusivity. 

As Justice P.N Bhagwati stated in Francis Coralie Mullin vs The Administrator “ The Constitutional provision must be construed in a wide and liberal manner, rather than in a narrow and constricted sense to take into account changing social norms”{10}. As Rightly stated that law should change with the changing society, if we continue to live with the laws made about 100 years ago, then we would not have achieved what we have now, and the position India holds now. All of this is possible because of our open minded approach and ability to adapt to the ever changing societal norms. If we can constitutionally provide for an identity then we should also look for its protection to thrive in society. It is high time to introduce changes, one being in the protection of every living person irrespective of its gender. 

{1} Vishakha and others vs State of Rajasthan and others, A.I.R. 1997 S.C. 3011 (India). {2} Indian penal code, 1860, (Act No. 45 of 1860), The Bharatiya Nyay Sanhita, 2023, (NO. 45 of 2023).

{3} Disha Kumar, Male sexual harassment, 6 IJFMR, 1, 3 (2024). 

{4} Frances Perraudin, Survey finds 70% of LGBT people sexually harassed at work, THE GUARDIAN, May 16, 2019. 

{5} Rachit Bansal, Analysis of the Criminal (Amendment) Act, 2013, MANUPATRA, Mar 9,2021

{6} Navtej Singh Johar vs Union of India, A.I.R. 2018 S.C. 4321. 

{7} Brad Sears, Nero Michelle Castelberry, Andy Lin & Christy Mallo, LGBTQ People’s Experiences of Workplace Discrimination and Harassment (2023), UCLA school of law WILLIAM INSTITUTE, (aug 2024),https://williamsinstitute.law.ucla.edu/publications/lgbt-workplace-discrimination/. {8} Anhad law, Supreme Court Refuses plea to Make sexual harassment policy gender neutral, Anhad law, dec 27, 2023. 

{9} Sakshi vs Union of India, (2004) 5 S.C.C. 518. 

{10} Francis Coralie Mullin vs The Administrator, (1981) 1 S.C.C. 608 (India).