Gender Neutrality in Bhartiya Nyaya Sanhita, 2023: Reform or Selective Progress.

Abstract

The Bharatiya Nyaya Sanhita, 2023 (BNS)1 replaced the Indian Penal Code,1860 2 with the objective of reforming and modernizing India’s criminal justice system. One of the significant aspects associated with the enactment of the BNS is the claim that the legislation introduces gender- neutral reforms into Indian criminal law. Traditionally, Indian criminal jurisprudence has been largely gender-specific, especially in relation to sexual offences where women are recognized as victims and men as perpetrators. However, changing social realities, increasing recognition of LGBTQ+ rights, constitutional developments,3 and debates surrounding equality have created demands for more inclusive criminal laws. The BNS attempts to respond to these demands by introducing gender-neutral terminology in several provisions relating to trafficking, assault, offences against children and cybercrimes. At the same time many important offences, notably rape, continue to be gender specific. This paper critically examines whether the BNS produces gender neutrality or merely minor selective progress. The paper examines constitutional principles, judicial precedents and socio-legal implications relating to gender neutrality under criminal law. It argues that while the BNS represents a progressive departure from some colonial approaches, it fails to adequately recognize diverse gender identities and equal victimhood across genders. Therefore, although the legislation is an important step of reform, the criminal code cannot yet be considered totally gender neutral. The study employs the doctrinal research methodology based on analysis of statutory provisions, constitutional principles, judicial precedents on gender neutrality and reform of criminal law in India.