When India replaced the colonial-era Indian Penal Code (IPC) with the Bharatiya Nyaya Sanhita (BNS) on 1 July 2024, it was presented as a landmark reform aimed at modernising the country's criminal justice system. The government emphasised that the new code was designed to be more citizen-centric, efficient, and reflective of modern India. While the BNS introduced several procedural changes and stricter punishments for many crimes, one omission has sparked significant legal and constitutional debate—the absence of a gender-neutral rape law.
Under Section 63 of the Bharatiya Nyaya Sanhita, rape continues to be defined as an offence committed by a man against a woman. This means that, in the eyes of the law, only women can be recognised as victims of rape under this provision. Men and transgender persons who experience non-consensual sexual penetration are excluded from the legal definition of rape, raising serious questions about equality, justice, and the protection of all citizens.
A Legal Gap Left Behind
Before the BNS came into force, Section 377 of the IPC criminalised "carnal intercourse against the order of nature." Although the provision was widely criticised for its historical misuse against LGBTQ+ individuals, following the Supreme Court's 2018 decision decriminalising consensual same-sex relations, it remained applicable to non-consensual acts and was sometimes used in cases involving male victims of sexual assault.
When the IPC was replaced, no equivalent provision addressing such non-consensual acts was included in the new criminal code. As a result, India no longer has a specific offence that recognises rape committed against men or transgender persons.
This does not mean that offenders cannot be prosecuted at all. Depending on the circumstances, police may invoke other provisions relating to assault, causing hurt, wrongful confinement, criminal force, intimidation, or other offences. However, these provisions do not specifically recognise the gravity of rape or provide the same legal framework and punishments associated with that offence.
For many legal experts, this represents a significant gap in the law rather than a complete absence of criminal liability.
Parliament Was Alerted
The omission was not unforeseen. During its examination of the proposed criminal law reforms, the Parliamentary Standing Committee on Home Affairs recommended that the government consider criminalising non-consensual sexual acts irrespective of the victim's gender. The committee acknowledged that sexual violence is not limited to women and suggested that the law should protect every person equally.
Despite these recommendations, the final version of the Bharatiya Nyaya Sanhita retained the traditional gender-specific definition of rape. Consequently, concerns raised during the legislative process remain unresolved.
The Reality of Male Sexual Violence
One of the biggest misconceptions surrounding sexual violence is that only women become victims. Research across the world shows that men and boys can also experience sexual assault. Victims include children, prisoners, military personnel, students, employees, and ordinary citizens. Many cases go unreported because male survivors often fear ridicule, social stigma, disbelief, or challenges to their masculinity.
Transgender persons face even greater barriers. They frequently encounter discrimination while reporting crimes, accessing healthcare, or seeking legal remedies. When the law itself does not specifically recognise them as victims of rape, obtaining justice becomes even more difficult.
Sexual violence is fundamentally about power, coercion, and the absence of consent—not merely the gender of either the victim or the offender.
Constitutional Questions
Several constitutional concerns arise from the current legal framework.
Article 14 of the Constitution guarantees equality before the law and equal protection of the laws. Article 21 protects every person's right to life and personal liberty, which the Supreme Court has repeatedly interpreted to include dignity, bodily integrity, and privacy.
Critics argue that excluding male and transgender survivors from rape laws creates unequal legal protection for victims of the same violent act. They contend that while women deserve strong legal safeguards, extending similar recognition to other victims would strengthen—not weaken—the justice system.
Others argue that India's rape law was intentionally designed to address the disproportionate prevalence of sexual violence against women, who continue to face systemic discrimination and higher rates of gender-based violence. According to this view, maintaining a women-centric rape law reflects social realities while other criminal provisions can address offences against men.
The debate, therefore, is not whether women deserve protection—they unquestionably do—but whether all victims should receive equivalent legal recognition for comparable crimes.
International Perspective
Many countries, including the United Kingdom, Australia, Canada, South Africa, and several European nations, have adopted gender-neutral sexual assault laws. These legal systems recognise that victims and offenders can belong to any gender while still acknowledging that women remain disproportionately affected by sexual violence.
Gender-neutral laws do not reduce protections for women. Instead, they expand legal recognition to every survivor without changing the seriousness of offences committed against women.
India has already adopted gender-neutral language in several other criminal offences. This makes the continued gender-specific definition of rape an increasingly debated issue among legal scholars and human rights advocates.
Beyond Legal Recognition
The impact of legal recognition extends beyond punishment. The definition of an offence influences police procedures, survivor support services, public awareness, compensation schemes, and societal attitudes.
When the law explicitly recognises a particular crime, it sends a message that every survivor deserves dignity and justice. Conversely, when certain victims are excluded from the legal definition, they may feel invisible within the justice system.
Many male survivors already hesitate to report abuse because of social stigma. A legal framework that does not specifically recognise their experience may further discourage reporting.
The Way Forward
The discussion surrounding gender-neutral rape laws should not become a competition between the rights of women and those of men or transgender persons. Protecting one group does not require excluding another.
Many legal experts have suggested retaining stringent punishments for sexual offences against women while expanding the legal definition of rape—or creating an equivalent offence—to include all victims of non-consensual sexual penetration.
Such reforms could ensure that every survivor receives equal recognition under criminal law while preserving the strong protections developed for women over decades of legal reform.
The Bharatiya Nyaya Sanhita represents one of the most significant overhauls of India's criminal laws since Independence. Yet its approach to sexual offences has generated an important constitutional and social debate.
Women remain the overwhelming victims of sexual violence in India and continue to require robust legal protection. At the same time, acknowledging male and transgender survivors does not diminish those protections. Justice should be based on the principle that every individual has an equal right to bodily autonomy, dignity, and legal protection.
As India continues to modernise its legal system, the question remains whether future reforms will recognise that sexual violence is defined not by the victim's gender, but by the absence of consent. A truly inclusive justice system must ensure that no survivor is left outside the protection of the law simply because of who they are.
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