Beyond Binary Justice: A Comparative Study of Gender Neutrality in Indian and International Criminal Laws

Across criminal justice systems, “gender neutrality” has become a contested aspiration. Many jurisdictions have moved from gender specific offences especially in the domains of sexual offences, workplace harassment, and domestic violence toward gender inclusive or at least gender aware drafting. India’s recent overhaul of its penal code (the Bharatiya Nyaya Sanhita, 2023), together with legacy frameworks like the POSH Act, 2013 and the Protection of Women from Domestic Violence Act, 2005, has reignited debate on whether formal neutrality better advances equality than targeted, gender specific protections. This paper offers a doctrinal, comparative analysis. It (i) sets out working definitions and theoretical lenses (formal equality, substantive equality, and intersectionality), (ii) examines Indian constitutional and statutory developments alongside leading Supreme Court decisions, (iii) compares approaches in the United Kingdom, Canada, South Africa, New Zealand, and the United States, and (iv) reads these domestic frameworks against international and regional instruments (CEDAW, the Istanbul Convention, the Rome Statute/ICC Elements of Crimes, the Yogyakarta Principles). I argue that formal gender neutrality sometimes obscures structural asymmetries, while context sensitive neutrality paired with robust procedural protections and implementation can extend protection without erasing the realities of gendered violence. The paper concludes with a reform blueprint for India that reconciles constitutional equality with practical protection: making victim facing provisions gender inclusive, retaining targeted programming where warranted, clarifying consent standards, improving data and implementation capacity, and aligning with comparative best practices and India’s human rights commitments.