In the country where there is continuous fight for gender equality and gender-neutral rape laws it is paradoxical note that the laws for heinous crimes like rape remain to be patriarchal and exclusive. How can one forget to take note about other gender. How can the law per se be biased? how can this be just when other sections are being neglected and through this narrow perspective of the law how can law provide equality and justice to the one who is being failed to take care of.

The people living in the 21st century expects that the whole population is being considered while making a law and that too for a heinous crime like rape. Isn't it the right time to answer all the question and make a law which is inclusive of all. Sexual assault and rape includes a range of offenses where sexual autonomy of an individual is inferred with or without the individuals consent.
The roots of this can be traced from the history where the society was patriarchal in nature.

It was largely believed that woman is like a property making her an easy prey or target for sexual assault and rape. This was common notion where it was it was believed that woman is more prone to rape and nobody at that time would imagine that even males or the LGBTQ+ community can also face the same. But as the time evolved there were changes made in the law. After the famous Nirbhaya case some significant changes were done in the law. Even then also male and the LGBTQ+ community didn't get the proper recognition in the provision and still it only revolved around the females.

The provision didn't paid attention on male-on-male rape, female on female rape or rape related to LGBTQ+ community. However, the rape provision still sees woman only as victims and men as penetrators. The law fails to include male community due pre-defined notions and the inclusion of LGBTQ+ community because they are well recognised in the society. Now the time has come to recognise their constitutional rights and frame gender neutral rape. In the case of Nipun Saxena vs Union of India in 2018 it was observed that "Rape is a crime against basic human rights and the violation of victim's fundamental rights".

The Struggle to be traced from the beginning:

If we examine Section 375 of IPC, the section begins with" If a man …. ", this clearly indicates that the victim is presumed to be female only. This reflects the deep-rooted social stigma and the misperception that male can never be raped. This violates the right of male and LGBTQ+ community by placing them on a back seat when it comes to heinous crime like rape. Although we would agree that there are less chances that rape would be committed on men or non-binary individuals, but that doesn't justify excluding them for legal recognition.

The first time when this gender-neutral rape laws term was coined in the case of Sudhesh Jhaku vs K.C. Jhaku in 1996 in which Justice Jaspal Singh of Delhi high court insisted the legislature to draft gender- neutral provisions.

This was the first time when an idea was emerged for advocating for gender neutral rape laws. The court emphasised that such a big change cannot be brough by judiciary alone instead, it requires legislative intervention. Later, in the case of Sakshi Singh vs Union of India the court reiterated that there is a need for gender neutral rape laws. Following this 172nd law commission of India was formed in the year 2000, which suggested substituting the word rape, with a more inclusive gender neutral offense of sexual assault. But all this went into vain when Nirbhaya case was registered in 2012, which drew nationwide attention.

The Nirbhaya case led to the formation Justice Verma Committee formed in the year 2012. The committee went to recommend that the definition of rape victim can be made gender neutral by using the word "person" instead of "woman" but retaining the term "man" for perpetrator. The committee believed that the perpetrator is typically male, except in certain situation.

This happiness for the trans community was for a very lived as although the Criminal Law (Amendment) Ordinance, 2013 although considered the gender-neutral approach that is a more inclusive definition of "rape" but the, Criminal Law (Amendment) Act, 2013 only implemented the recommendation that made the rape provisions more stringent and widening the scope its definition. It didn't took into consideration the aspect of gender neutrality in the provisions and reserved the gender specific provisions. Initially the committee supported for gender neutral rape laws but later they revisited their stance, citing potential misuse of these provision against woman.

In the landmark case of NALSA vs UOI in the year 2014, the court ordered that the right of transgender communities should be recognised, asserting that failing to comply with it would violate their constitutional rights under article 14 of Indian constitution. However, lawmakers have yet to extend the rape provisions to include transgender as rape victims. Similarly, in State government v Sheodayal high court acknowledged that there is a possibility that a woman modesty can be infringed by another woman.

Moreover, in 2017 NALSA conducted consultation on access to justice for transgender rights. There are many instances when they face sexual assault and there is no explicit rape provision that protects them from such heinous crimes.

Even after the changes made in the criminal laws they have further limited the scope of rape provision by excluding gender neutral rape clauses. Later on in the case of Navtej Singh Johar vs union of India supreme court decriminalized section 377 of the IPC which was a gender neutral clause included both heterosexuals and homosexuals. . This exclusion creates significant issues, as it disregards the right of males and LGBTQ+ community. This is a clear and blatant violation of article 14,15 and 21 of the Indian constitution.

These law fails to uphold the basic rights of equality and life, which are to be safeguarded and maintained by the state.
This exclusion in the law marginalises a large section of population and perpetuates misconception about heinous crime like rape. In the landmark case of State of West Bengal v. Anwar Ali Sarkar (1952) the supreme court said that any provision or law that differentiates between communities must satisfy specific criteria to ensure equality and fairness.

Also to prove that the differentia is just it should pass the 2 criteria given below:

• It should be based on intelligible differentia that makes distinction between two section and separates them
• The intelligible differentia must be based on reasonable classification which should be lawful and pass the intelligible differentia test.

It may be noticed that under POCSO 2012, sexual assault offences cover both genders. However post-puberty, other laws remain silent or are gender-specific. In the case of Ankur Mittal vs State (2018), the court emphasises the need for provision to protect male victims of rape, ensuring same safeguards available for female victims.

Inconsistent punishments: Gender bias in the new provisions

Under the revised Section 114 and 115 of the Bharatiya Nyaya Samhita, 2023 (BNS) , rape committed on against males is considered under the category of "grievous hurt". But if the punishment clauses are seen there is a drastic difference if a rape is committed on female there will be punishment of life imprisonment as per section 63. In contrast for male victims there is only a punishment of 7 years.

Regarding transgender they are protected under section 18 of the Transgender Persons (Protection of Rights) Act, 2019 which is prescribed minimum imprisonment of 6 months and maximum of 2 years. It should clearly be acknowledged that the perpetrator in case of males and transgender can freely walk away after committing such a heinous crime. The law fails to recognise this disparity. This shows that physical and psychological trauma endured by victim who are not female is less severe. This perpetuates the problem of gender stereotype and the myth that male cannot be raped.

Turning to the LGBTQ+ community which includes non-binary genders such as lesbian, transgender, gay and more. There are many instances where same gender face sexual assault and rape. Unfortunately, many of these cases goes unnoticed and unregistered due to societal stigma and absence of explicit provision to protect them.

These instances underscore the urgent need of law provisions that explicitly protects non-female victims of sexual assault and rape. The lack of proper legal provision leaves many perpetrators to escape accountability, thereby increasing vulnerability of marginalised communities and perpetuating injustice.

Conclusion:
The above text highlights the vulnerability and the status of various other communities compared to the female section of the society. It emphasizes the need for more gender-neutral rape laws because the same notion cannot be continued in the 21st century also. With the evolution of time, it is implicit that the thinking has also progressed. All community must be treated equally and there cannot be unjust laws which violates the basic rights which are guaranteed by the Indian constitution.

In this context, article 14, 15 and article 21 are infringed upon, when other section of the society is not safeguarded or protected under new and revised laws that. It must be noted that means and LGBTQ+ communities are also susceptible to offences such as sexual assault and rape. However, the law remains silent on protecting these communities when such crime is committed against them. While there are certain legal provisions offering them protection, but that are neither adequate nor satisfactory. They provisions prescribe lighter punishments as compared to a situation when rape is committed on female.

In the various judgements the court has observed the pressing need of gender-neutral rape laws. There is an urgent need to redefine and reconsider the fundamental meaning of rape clause. The law makers should take into account every community while making rape provisions. The critical point is that there is a potential for a person to be get raped regardless of their gender.

Finally, any law that is discriminatory in nature or violates the right of other communities should pass the test of reasonable classification to ensure justice and fairness.