Reimagining Indian Criminal Law Through Inclusive Gender Justice

Indian criminal law has always been constructed in an environment of patriarchy, colonialism and heteronormative rule that left women and gender minorities out of the mainstream of criminal law discourse and practice. The Constitution of India provides for equality, dignity, liberty and non-discrimination but in practice this has not been consistent in the criminal justice system, with exclusionary practices. In the last few decades, there have been many important changes in the law on sexual violence and domestic abuse, workplace harassment, and LGBTQIA+ issues, brought about by judicial decisions, feminist campaigns, public protest and international human rights. Despite these advances, however, the structural inequalities remain, affecting access to justice in India. The paper critically reviews the shift in the Indian criminal law in respect of inclusive gender justice. The paper, which uses qualitative review methodology, secondary sources such as statutes, judicial pronouncements, scholarly literature, committee reports, and policy documents, examines the development of the jurisprudence of gender justice in India. The results indicate that, while the rights-centred approach in the criminal law has seen a rise in dignity and autonomy, the institutional patriarchy, caste system and lack of sensitivity for procedure and exclusionary legal structures still affect substantive equality. The paper goes on to suggest that, in inclusive gender justice, transformative constitutionalism, intersectional legal approaches, victim-centred justice systems, and institutional accountability go beyond symbolic legislative change. The study argues that any criminal law reform in India must go beyond equality to substantive inclusion that could respond to the varied experiences of violence and discrimination amongst gender identities and social locations.