Authored By: J Ragav
VIT Chennai
Introduction
Equality is one of the most fundamental and basic principles in the Constitution of India. Article 14[1] guarantees equality before law and equal protection of laws to every person inside the Indian Territory. Over years, the judiciary has expanded the scope of Equality to include a lot of facets apart from just the two facets mentioned. Precedents expressly emphasized that rights cannot be denied due to negligible count. Even though a lot of changes has been brought in through legislative amendments and judicial interpretations, law still continues rely on the outmoded gender-based classifications. For example: Adoption, sexual offences and family law provisions are often based on gender rather than focusing on the individual capacity and conduct.
While the motive is to address the genuine social concerns, there shall some reconsideration about whether the legal protection should be denied to others who suffer similar harms. This Article argues for shift towards harm based and rights-based framework to ensure legal protection to all regardless of gender.
Main body
The Legal system in India primarily depended on certain factors such as religion, gender and many for determining the rights, protection and liability. While the solutions worked for the time being, the progressive society needs a progressive legislative framework.
One best example is the adoption laws in India. The governing frameworks include the Juvenile Justice (Care and Protection of Children) Act, 2015[2], CARA guidelines[3], The Hindu Adoption and Maintenance Act, 1956[4], Guardians and Wards Act, 1890[5]. While the common objective is child welfare, they do reveal the existing gender disparities and assumptions in legal policy.
Under JJ Act Sec 57, prospective parents must be physically, mentally, financially and emotionally capable, which is a standard not distinguished by gender. However the CARA guidelines allows single female to adopt any child while banning single males from adopting girls. Even though aimed at child protection, it advances constitutional concerns. The law presumes potential risk associated with men adopting a girl, and there do exists risk in a female adopting a child. The existing blanked presumption simply provides that every man is unsuitable to adopt a girl child.
The aforesaid points become clear when it is viewed alongside the HAMA Section 7, where permits male hindu to adopt subject to certain conditions and so does for women in Section 8, subject to section 10 and 11, clearly proving no blanket ban on single male adopting a child. When child welfare becomes the primary concern, the eligibility shall rely on objective criteria such as criminal histories, background checks, financial status and background checks. The current framework has assumptions over evidence, disqualifying an applicant based on what they are, rather than who they are.
In contemporary time, it is even more problematic, as the legislation is built on binaries, making it difficult for laws to accommodate the transgender individuals. NALSA V Union of India[6] identified that existing legislation is inadequate to deal with real time problems. A transgender women cannot be denied the opportunity to adopt merely because she was assigned male at birth, just as she cannot automatically be granted without a clear legal framework. These expose the limitations of law prevailing that rely exclusively on binary gender classifications.
A similar concern raises with respect to the LGBTQ+ community. While the traditional notions of father and mother prolonged over years, gender doesn’t matter when it comes to being capable of providing a safe and nurturing environment for the child. A right based approach would focus better on the welfare of the child rather than the preconceived notions. Despite all these, the Supreme Court through the case of Navtej Singh Johar v Union of India[7] effectively provided for legal recognition and some extent of rights for LGBTQ+ community, but it still stays as mere recognition rather than providing for protection.
It becomes even more concerning and significant when it comes to the context of sexual offence laws. Section 63 of BNS currently defines rape. The whole definition has been historically framed in such a way where it assumes a male as a perpetrator and the female as the victim. While this worked effectively in protecting women, it failed in recognizing other categories of victims and offenders. Men, Transgender and intersex persons may also experience a serious violation of their bodily autonomy, while on the other hand, women and persons of other gender identities may commit such acts which results in comparable harm.
The theme of the issue lies on whether the law should focus primarily on identity of parties alone or the nature of act as well. Sexual violence is fundamental violation of consent, personal autonomy and bodily integrity. These interest belong to everyone regardless of their gender. If the objective of the law is to punish the conduct and protect the individual rights, the definitions should be broad enough to encompass all victims and offenders.
A gender-neutral framework doesn’t require abandoning special protections, instead it allows law to distinguish offences on the basis of harm rather than identity. For instance, a law can be enforced to punish for non-consensual sexual penetration applicable to everyone. Then there can be provisions specially for defining and punishing aggravated forms, such as involving children, gang assaults, abuse of power, extreme violence, permanent injury or even vegetative state and death. Such a model would allow for equal access as well as recognize seriousness in degree of offences.
This approach is in par with the Article 14. While it allows for classifications, arbitrary and unreasonable classifications shall be prohibited. This arises a constitutional question on whether gender based distinctions is actually necessary while the underlying harm is substantially similar. And at the same time, gender-neutral reforms must not come at the cost of victim. Since women face a disproportionate amount of stigma and violence, the reforms shall preserve the effective safeguards, while also extending the protection to other who fall outside the framework. The goal is to ensure that every victim receives recognition and every offender is held accountable regardless of their gender.
Conclusion
The law functions effectively in this case when it responds to conduct and consequences rather than assumptions. A system that evaluates cases based on the gravity of harm inflicted, absence of consent and the circumstances is better equipped to address the contemporary issues, making the Indian law capable of effectively fulfilling the goals of equality as promised in the Constitution of India.
Reference(S):
Constitution of India, Articles 14 and 21
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
Hindu Adoption and Maintenance Act, 1956.
Juvenile Justice (Care and Protection of Children) Act, 2015.
Bharatiya Nyaya Sanhita, 2023.
[1] Constitution of India, art 14
[2] Juvenile Justice (Care and Protection of Children) Act 2015 (India)
[3] Central Adoption Resource Authority Guidelines Governing Adoption of Children, 2017 (India)
[4] Hindu Adoption and Maintenance Act 1956 (India)
[5] Guardians and Wards Act 1890 (India)
[6] National Legal Services Authority v Union of India
[7] Navtej Singh Johar v Union of India (2018) 10 SCC 1 (SC)
