1. Introduction

The recent enactment of the Bharatiya Nyaya Sanhita (BNS), 2023, marks a significant overhaul of India’s criminal justice framework, replacing the historic Indian Penal Code (IPC) of 1860. Promulgated on 1 July 2024, BNS introduced notable reforms in addressing sexual offences, placing emphasis on protections for women and children.

The legislation conspicuously omits explicit provisions addressing forced “unnatural” sexual acts, including those perpetrated against male victims. This lacuna has raised concerns among legal scholars and human rights practitioners, who argue that it creates a legal vacuum— effectively rendering sexual violence against male persons non-punishable.

This article:

1. Examining the evolution of sexual offence jurisprudence under IPC Sections 375–377 and their discontinuity in BNS.
2. Judicial Developments: Analysing jurisprudence from the Delhi High Court and other tribunals regarding the gap, including public interest litigation and judicial observations.
3. Normative Assessment: Evaluating the socio-legal consequences in terms of gender neutrality, constitutional equality, and international human rights compliance.

It concludes with an integrated set of legislative, judicial, and administrative recommendations aimed at restoring comprehensive protections under Indian criminal law.

2. Background: Sexual Offences and Section 377 of the Indian Penal Code

2.1 Historical Overview of Section 377 IPC

Enacted in 1860 under British colonial rule, Section 377 of the Indian Penal Code criminalized "carnal intercourse against the order of nature," a term broadly interpreted to include anal and oral sex regardless of consent. The provision, rooted in Victorian morality, was vague and applied regardless of gender or consent, thereby criminalizing consensual same-sex relations along with non-consensual acts. It stated:

"Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

While initially designed to uphold conservative sexual norms, the section gained notoriety in the 21st century for being misused to harass LGBTQIA+ individuals and for not being applied equitably to instances of male or transgender sexual victimization.

2.2 Decriminalization: Navtej Singh Johar v. Union of India (2018)

A significant development occurred in the landmark Supreme Court case Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. The Court unanimously held that Section 377, insofar as it criminalized consensual sex between adults, was unconstitutional. The judgment was a watershed moment in Indian legal history, marking a clear shift toward recognising individual autonomy and sexual orientation as protected under Articles 14, 15, and 21 of the Constitution.

The judgment did not invalidate the section entirely. The Court expressly preserved its application to non-consensual acts and bestiality. Thus, Section 377 remained operative for prosecuting unnatural sexual acts that were non-consensual, including male-on-male sexual assault—a provision absent from Section 375 IPC, which defined rape in gender-specific terms as being perpetrated against a woman.

2.3 IPC’s Gender-Biased Definition of Rape

Section 375 IPC defined rape as an act perpetrated by a man against a woman, making it inherently gender-specific. Although the Criminal Law (Amendment) Act, 2013, enacted after the Nirbhaya case, substantially broadened the definition of rape, it retained the gendered framework, i.e., the perpetrator must be male, and the victim must be female.

This framework excluded men, boys, and transgender persons from statutory protection against penetrative sexual assault unless their cases could fall under the residual application of Section 377. This legal exclusion raised fundamental concerns regarding the universality of bodily autonomy and protection against sexual violence.

2.4 Use of Section 377 to Protect Male Victims

In the absence of gender-neutral rape laws, male survivors of sexual assault could invoke Section 377 IPC to prosecute non-consensual sexual acts. Although the terminology and framing of Section 377 were archaic, Indian courts occasionally applied it in cases involving male victims.

For instance, in Lillu @ Rajesh & Anr. v. State of Haryana (2013), the Supreme Court acknowledged that non-consensual sexual acts other than penile-vaginal intercourse required protection under criminal law, implicitly recognizing the residual utility of Section 377 in cases involving male victims.

3. Legislative Silence under the Bharatiya Nyaya Sanhita, 2023

3.1 Introduction to the Bharatiya Nyaya Sanhita (BNS), 2023

The Bharatiya Nyaya Sanhita, 2023 (BNS), enacted to replace the colonial-era Indian Penal Code, was envisioned as a modern and indigenous codification of substantive criminal law. One of the declared objectives of the BNS was to address contemporary forms of crime and to move beyond the outdated Victorian moral frameworks that governed the IPC. In this context, many observers anticipated that the BNS would address the long-standing gaps in Indian criminal law regarding sexual violence against men and individuals of other gender identities.

It does not provide any parallel mechanism to criminalize the sexual assault of males or others outside the female gender binary.

3.2 Omission of Former Section 377 IPC

One of the most debated aspects of the BNS is its omission of any provision analogous to Section 377 IPC. As discussed previously, Section 377, although problematic in its historical use, provided the only penal provision applicable to male and transgender survivors of penetrative sexual violence. With its repeal and no substitute provision in the BNS, a legislative vacuum now exists for male victims of non-consensual sexual acts.

Legal experts, academics, and courts have begun to raise this issue. For instance, in Gantavya Gulati v. Union of India, the Delhi High Court issued notice to the Central Government, questioning the absence of provisions penalizing unnatural sex or sexual assault on males. 3.3 Current Legal Framework: Section 63 of the BNS

Section 63 of the BNS, which replaces the rape provision under IPC Section 375, continues to define rape as an offence committed by a man against a woman. The essential ingredients remain penetrative acts, lack of consent, and coercion, but the definition remains inherently gendered.

The implications of this are critical:

• A male victim of non-consensual anal or oral sex cannot seek recourse under Section 63.
• Transgender individuals are not expressly included in the definition of victims.
• Even if such acts constitute grievous hurt, criminal intimidation, or outraging modesty under other provisions, none of these fully capture the gravity of sexual violation.

3.3 Delhi High Court’s Intervention

In August 2024, the Delhi High Court asked the Central Government to explain the omission of provisions dealing with unnatural sex in the BNS, 2023. The case was taken up after a PIL challenged the constitutional validity of the BNS for failing to criminalize sexual offences against men and LGBTQ+ persons.

The bench asked:

"How will a male victim of non-consensual anal or oral sex seek legal redressal? What is the penal remedy available now?”

The absence of a clear answer highlights the judicial concern that the new legislation may not only be regressive but also violative of Articles 14 and 21 of the Constitution, which guarantee equality before law and protection of life and personal liberty, respectively.

3.4 A Missed Opportunity for Reform

Numerous civil society organisations, legal reform committees, and gender rights advocates had proposed during the drafting process of the BNS that sexual offences law be made gender-neutral. Recommendations included:

• Redefining rape to include all forms of non-consensual penetrative acts, regardless of the gender of the victim or perpetrator.
• Including specific provisions for male, transgender, and intersex victims.
• Replacing Section 377 with a neutral sexual assault provision.

4. Impact of the Legal Vacuum on Male Survivors and Gender Minorities

The absence of a clear statutory framework for addressing sexual violence against male and transgender individuals under the Bharatiya Nyaya Sanhita, 2023 (BNS) has led to severe practical and psychological consequences for victims. Law, by its very nature, not only punishes wrongdoing but also symbolizes state recognition of the harm suffered. When the law fails to acknowledge certain categories of victims, it implicitly delegitimizes their experiences, fostering a culture of silence, stigma, and impunity.

4.1 Underreporting and Social Stigma

Male survivors of sexual assault already face significant cultural and societal barriers. Toxic masculinity, patriarchal notions of gender, and the social expectations surrounding male invulnerability contribute to the silencing of such victims. The absence of legal recognition under the BNS exacerbates these issues, as male victims:

• Have no dedicated provision under which they can report penetrative sexual assault.
• Face ridicule or disbelief if they approach law enforcement authorities.
• Are discouraged by the lack of assurance of justice, leading to systemic underreporting.

A 2014 study by the Centre for Civil Society revealed that nearly 20% of sexual abuse victims in India are male, although this number is likely under-representative due to severe underreporting. Despite this, the law continues to treat sexual assault as a women-only issue.

4.2 Lack of Legal Remedies

Under the BNS, the current options for a male victim of sexual assault are extremely limited:

• He may attempt to proceed under general provisions such as "grievous hurt" or "assault," but these do not reflect the nature or gravity of sexual violence.
• Section 64 (related to sexual offences) does not accommodate male or transgender victims, either expressly or impliedly.
• Civil remedies for emotional trauma or mental agony are inadequate substitutes for the need for criminal justice recognition.

This lack of remedy translates to legal invisibility. Courts are constrained by the language of the statute, and police authorities often refuse to register complaints of sexual assault from male victims due to absence of applicable penal provisions.

4.3 Marginalization of Transgender and Non-Binary Persons

The transgender community is perhaps the most adversely affected by the legal vacuum in BNS. While the Transgender Persons (Protection of Rights) Act, 2019 recognizes their rights broadly, it lacks strong penal consequences for sexual violence. The BNS fails to integrate gender inclusivity in its provisions on sexual offences, thereby creating a contradiction between criminal law and anti-discrimination frameworks.

Numerous international human rights bodies, including the United Nations Human Rights Council and World Health Organization, advocate for gender-neutral laws in sexual assault cases. The Indian Supreme Court, in NALSA v. Union of India (2014), recognized the right to self-identification of gender. Yet the BNS remains bound to a binary gender approach, rendering its provisions constitutionally inconsistent.

4.4 Psychological Impact and Revictimization

Beyond legal exclusion, victims face psychological trauma due to institutional neglect. The failure of the law to acknowledge male and non-binary survivors often results in:

• Feelings of worthlessness and hopelessness.
• Post-Traumatic Stress Disorder (PTSD), depression, and suicidal ideation.
• Revictimization by police, medical authorities, and even courts.

Academic studies from the National Institute of Mental Health and Neurosciences (NIMHANS) show that male victims of sexual abuse who do not receive justice or recognition suffer prolonged trauma and increased risk of self-harm.

4.5 Contradictions with Judicial Precedent

Indian courts have previously acknowledged the existence of male and LGBTQ+ victims of sexual crimes. For example:

• In Suresh Kumar Koushal v. Naz Foundation (2013), although Section 377 was upheld at the time, the Court implicitly acknowledged sexual violence against samesex individuals.
• Later, in Navtej Singh Johar v. Union of India (2018), the Supreme Court recognized the constitutional rights of LGBTQ+ individuals and decriminalized consensual homosexual relations.
• The Delhi High Court’s observations in Gantavya Gulati v. Union of India further demonstrate growing judicial concern over the lack of penal protection for non-female victims.

These judicial advances now stand in tension with the narrow framework of the BNS, suggesting a need for legislative harmonization with constitutional jurisprudence.

4.6 International Legal Standards

Several countries have adopted gender-neutral definitions of sexual offences:

• United Kingdom: The Sexual Offences Act, 2003 defines rape and assault irrespective of the victim’s gender.
• United States: Federal and many state laws criminalize all forms of non-consensual penetration, regardless of gender.
• South Africa: The Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 uses a comprehensive and inclusive approach.

India, by contrast, has regressed with the BNS 2023. The country’s legal obligations under the International Covenant on Civil and Political Rights (ICCPR) and Convention against Torture require that all individuals be protected equally under the law—irrespective of sex, gender identity, or orientation.

5. Constitutional Analysis and the Case for Gender-Neutral Legal Reforms in India

The Bharatiya Nyaya Sanhita, 2023 (BNS) must be evaluated not only through the lens of criminal jurisprudence but also under the overarching framework of the Constitution of India. The exclusion of men and transgender persons from the ambit of sexual offences under the BNS raises serious questions about the right to equality, dignity, and equal protection under the law. The Indian Constitution, being a dynamic and inclusive document, mandates that laws must evolve with societal needs and constitutional morality.

5.1 Article 14: Equality Before the Law

Article 14 of the Constitution guarantees “equality before the law” and “equal protection of the laws” to all persons, not just citizens. The gender-specific language of sexual offence provisions in the BNS violates this mandate by:

• Discriminating solely on the basis of gender.
• Creating an unjust classification that is not based on intelligible differentia.
• Failing the test of reasonable classification as the objective of preventing and punishing sexual violence applies equally to all genders.

As held in Navtej Singh Johar v. Union of India (2018), “constitutional morality supersedes any imposition of a particular view of societal morality.” Denying male and transgender victims access to justice is a direct affront to this principle.

5.2 Article 15: Prohibition of Discrimination

Article 15 prohibits the State from discriminating on the grounds of sex, among others. While it allows for affirmative action in favour of women and children, it does not permit blanket exclusion of others from legal protection. A criminal statute like the BNS, which imposes criminal consequences only for female victims, risks becoming discriminatory against male and transgender survivors. The legislative failure to recognize their suffering denies them equal access to legal redress and violates the spirit of Article 15.

5.3 Article 21: Right to Life and Personal Liberty

The right to life and personal liberty under Article 21 has been interpreted expansively to include the right to dignity, privacy, and bodily autonomy. In K.S. Puttaswamy v. Union of India (2017), the Supreme Court affirmed that every individual—regardless of gender identity or sexual orientation—has a right to privacy and dignity. Sexual assault constitutes a grave violation of this right.

5.4 Judicial Interpretation: Push Toward Inclusivity

Indian courts have increasingly adopted a progressive and inclusive stance on gender rights. In NALSA v. Union of India (2014), the Supreme Court recognized the third gender and emphasized that the rights of transgender persons must be protected equally. This includes protection from sexual violence.

The Delhi High Court, in the Gantavya Gulati case, raised serious questions about the lack of protection for non-female victims under the new law, signaling the judiciary’s discomfort with this legislative oversight.

5.6 Need for Harmonization of Laws

The Transgender Persons (Protection of Rights) Act, 2019 grants broad rights to gender minorities, including protection against abuse. However, the criminal law framework under the BNS fails to operationalize these protections. There exists a glaring inconsistency between special laws and general penal provisions.

A harmonized approach is required, wherein:

• The definition of sexual offences in BNS should be amended to be gender-neutral.
• Legal provisions must ensure that every victim—regardless of sex, gender, or identity—can access justice under the same statute.
• Complementary reforms should be introduced in procedural and evidentiary laws (e.g., CrPC, Evidence Act) to support this shift.

5.7 Recommendations of Law Commissions and Experts

While the Justice Verma Committee (2013) did not explicitly recommend gender neutrality in rape laws, various scholars and civil society organizations have pointed out that its silence on this issue has allowed legislative inertia to persist.

The Malimath Committee Report (2003) did suggest making sexual offences gender-neutral, emphasizing that both men and women can be victims. Moreover, recent parliamentary discussions and law reform commissions have received multiple representations seeking this reform, but these remain unacted upon.

6. Arguments For and Against Gender-Neutral Laws on Sexual Harassment

The debate on whether India’s criminal law, particularly the Bharatiya Nyaya Sanhita, 2023 (BNS), should adopt gender-neutral language for sexual harassment and related offences has intensified in recent years. While proponents argue from the standpoints of equality, fairness, and human rights, opponents raise concerns about misuse, patriarchy, and societal structure.

This section critically examines both sides of the debate to provide a balanced understanding.

6.1 Arguments in Favour of Gender-Neutral Sexual Harassment Laws

(a) Constitutional Mandate of Equality

As detailed earlier, Articles 14, 15, and 21 of the Indian Constitution guarantee equal protection of the law to all individuals, regardless of sex or gender identity. The present gender-specific framework of the BNS violates this foundational principle. Gender-neutral laws would uphold constitutional morality and rectify existing discrimination.

(b) Men and Transgender Persons as Victims

Statistical and anecdotal evidence indicates that men and transgender persons are also subject to sexual violence. While societal taboos may underreport such cases, studies show that:

• Male sexual assault survivors face social stigma and lack institutional support.
• Transgender individuals report significantly higher rates of sexual abuse, often from both strangers and state actors.
• The lack of recognition under criminal law leads to a denial of justice for these victims.

(c) Psychological and Social Impact

The trauma experienced by male and transgender survivors of sexual harassment is comparable to that of female victims. Depression, PTSD, shame, and suicidal ideation are common consequences. The exclusion of their experiences from legal discourse reinforces victim-blaming, stigma, and silence.

(d) Global Best Practices

Many developed countries—including the UK, Canada, Australia, and South Africa—have enacted gender-neutral sexual offence laws that focus on the nature of the act and the absence of consent rather than the identity of the victim. India, aiming to be a leader in human rights, cannot ignore this international trend.

(e) False Sense of Legal Immunity

Gender-specific laws may create a dangerous perception that men or trans persons cannot be raped or harassed. This opens up the possibility of their victimization without fear of consequences for perpetrators. Such a lacuna in law also distorts crime statistics and policy responses.

(f) Recognition of Changing Social Realities

Traditional notions of masculinity discourage male victims from speaking out. Genderneutral laws would help dismantle toxic masculinity and recognize that vulnerability and trauma transcend gender. It would also acknowledge evolving concepts of sexuality and bodily autonomy.

6.2 Arguments Against Gender-Neutral Laws

(a) Risk of Misuse

One of the most frequently cited arguments is the potential misuse of gender-neutral laws, particularly by vindictive individuals to file false cases against women. Critics point to instances under Section 498A of the IPC or domestic violence laws to support this concern.

But every criminal provision is susceptible to misuse. Legal safeguards, procedural rigor, and judicial discretion—not blanket exclusions—are the appropriate response to potential misuse.

(b) Historical and Structural Inequality

Feminist scholars argue that sexual violence laws were designed as affirmative protections for women in a patriarchal society. Gender neutrality may, in their view, dilute the recognition of structural violence that women have historically faced and continue to endure.

This argument holds some merit but does not justify the complete exclusion of other vulnerable groups. Protection for one group should not come at the cost of invisibilizing another.

(c) Overburdening the Criminal Justice System

Some opponents argue that expanding the scope of victims could lead to increased caseloads, straining an already overburdened judiciary and law enforcement system. However, this is more a reflection of administrative failure than a valid objection to inclusion and justice.

(d) Fear of Victim-Shaming or Reversal of Gender Roles

There is a cultural apprehension that recognizing men as victims could lead to an erosion of women-centric protections or diminish the severity of crimes against women. These fears, while understandable, are often rooted in stereotypes and require careful public sensitization rather than legislative omission.

6.4 Balanced Approach and the Way Forward

Rather than pitting one gender’s pain against another, the focus of criminal law should be the harm caused and the absence of consent—irrespective of the gender identity of the victim or perpetrator. A balanced approach could include:

• Amending BNS provisions to use gender-neutral terms such as “person” or “individual” instead of “woman”.
• Retaining provisions for aggravated or special circumstances to protect vulnerable populations (e.g., children, persons with disabilities, victims of caste- or communitybased violence).
• Strengthening procedural safeguards to prevent false cases.
• Providing gender-sensitive training to police, prosecutors, and judges to handle all sexual assault cases with empathy and fairness.

7. Judicial Trends and Case Laws Highlighting the Gap

7.1 Gantavya Gulati v. Union of India (2024)

In this landmark case before the Delhi High Court, the petitioner challenged the omission of provisions equivalent to Section 377 of the Indian Penal Code (IPC) in the newly enacted BNS, 2023. The petitioner argued that the absence of any penal provision for non-consensual unnatural sexual acts between persons not covered under Section 63 (rape) of BNS results in an unconstitutional vacuum.

The court sought clarification from the Union Government on why BNS fails to criminalize non-consensual acts of unnatural sex involving male and transgender victims.

This case triggered a constitutional debate on whether such omissions violate Articles 14, 15, and 21.

7.2 Navtej Singh Johar v. Union of India (2018) – Supreme Court

Though not directly related to sexual harassment, this historic judgment struck down Section 377 IPC in so far as it criminalized consensual sex between same-sex adults. However, the Court clarified that non-consensual acts would still be punishable.

7.3 Supreme Court’s Dismissal of Petition on Gender-Neutral Rape Law (2024)

In 2024, the Supreme Court refused to entertain a plea seeking inclusion of men, transgender persons, and animals under sexual offence laws in BNS. The Court stated that it is a policy matter best left to the legislature.

Implications:

• This judgment revealed the judiciary’s restraint in intervening where clear legislative gaps exist, leaving victims with no remedy unless Parliament amends the law.
• It highlighted the urgent need for advocacy and legislative engagement rather than expecting courts to rewrite statutory provisions.

7.5 Delhi High Court Observations on Unnatural Sex (August 2024)

The Delhi High Court, while hearing bail applications and reviewing custodial torture cases involving male inmates, questioned the government on why there is no punishment for nonconsensual sodomy in the BNS.

The Court remarked:

“By excluding unnatural sex from punishment altogether, are we giving a license to violate the bodily integrity of men and trans individuals?”

This observation reflects a growing judicial consciousness of gender exclusion in the BNS.

7.6 Comparative Case: Mohit v. State of Punjab (2015)

In this Punjab & Haryana High Court case, a male victim alleged sexual assault by a group of men. The court expressed helplessness in granting relief under IPC rape provisions and advised the complainant to seek redress under Section 377 IPC (as it then existed).

Post-BNS, even this remedy is unavailable.

8. Comparative Analysis of Other Jurisdictions

8.2 United Kingdom

The Sexual Offences Act, 2003 of the UK is a progressive statute that adopts a gender-neutral language throughout. It recognizes rape, sexual assault, and other sexual offences regardless of the gender of the victim or the perpetrator.

• Section 1: Rape defines it as penile penetration of the vagina, anus or mouth without consent, but the victim can be of any gender.
• Section 2 & 3 (Assault by penetration and Sexual Assault) are completely genderneutral.
• Separate sections deal with child abuse, exploitation, and abuse of positions of trust.

8.3 United States

• The Federal definition of rape (as per FBI’s Uniform Crime Reporting Program) was amended in 2012 to include “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”
• This definition is gender-neutral and includes male and trans victims.
• States like California, New York, and Illinois have comprehensive statutes that criminalize various forms of sexual offences irrespective of gender.

8.4 Canada

Canada’s Criminal Code does not use the term “rape” but includes a series of gender-neutral offences like:

• Sexual interference (Section 151),
• Invitation to sexual touching (Section 152),
• Sexual assault (Section 271),
• Aggravated sexual assault (Section 273).

8.5 South Africa

South Africa's Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 is one of the most progressive sexual offence laws in the world.

Features:

• Recognizes male rape, same-sex rape, and anal/oral non-consensual sex as serious offences.
• Clearly provides legal redress for male and transgender victims.

8.6 Nepal

Nepal’s Criminal Code, 2017 recognizes sexual violence in a gender-neutral manner. The law makes it clear that rape and sexual abuse can happen to anyone, regardless of gender.

This reflects a progressive shift in South Asia, in contrast to India’s still-gendered understanding of sexual crimes under BNS.

9. Recommendations and the Way Forward

Addressing the legal vacuum concerning male and transgender victims of sexual harassment and assault under the Bharatiya Nyaya Sanhita, 2023 (BNS) is not merely a matter of legislative reform—it is a step toward aligning India’s criminal justice system with constitutional values, judicial directives, and international human rights standards. The following recommendations are aimed at making the Indian criminal law framework more inclusive, gender-neutral, and victim-centric.

9.1 Legislative Reforms

(i) Adopt Gender-Neutral Language in Sexual Offence Provisions

One of the most immediate reforms required is to revise Sections 63, 75, and related provisions of the BNS to employ gender-neutral terms such as "any person" instead of only "woman." This would ensure:

• Equal protection to males, transgender persons, and non-binary individuals.
• Compliance with Article 14 (equality before law) and Article 21 (protection of life and dignity).

(ii) Reintroduce a Revised Version of Section 377 IPC

While the decriminalization of consensual homosexual acts was a progressive step, the complete repeal of Section 377 IPC has led to a vacuum regarding non-consensual anal or oral sex. A new provision should:

Criminalize non-consensual acts of sexual penetration, irrespective of gender.

• Recognize different forms of sexual assault beyond vaginal rape. (iii) Include Sexual Harassment of Males and LGBTQ+ Individuals Section 75 (Sexual Harassment) should be expanded to:
• Cover all persons irrespective of gender or sexual orientation.
• Include incidents in workplaces, educational institutions, public transport, and cyberspace.

9.2 Policy and Procedural Measures

(i) Gender-Inclusive Training for Police and Judiciary

Law enforcement personnel and the judiciary should undergo mandatory gender-sensitization training focusing on:

• Male and LGBTQ+ victims of sexual violence.
• Handling complaints without stigma, disbelief, or ridicule.

(ii) Creation of Gender-Neutral Shelters and Support Systems

Currently, most shelters and crisis centres cater exclusively to female victims. The government should:

• Establish helplines, shelters, and legal aid cells for all genders.
• Offer trauma counselling, medical assistance, and rehabilitation without discrimination.

(iii) Awareness and Education Campaigns

Public sensitization campaigns must focus on:

• Dispelling myths that only women can be victims of sexual violence.
• Encouraging male and LGBTQ+ survivors to report crimes.
• Promoting respectful relationships, consent, and bodily autonomy.

10.3 Judicial Interventions

(i) Proactive Judicial Review of BNS Provisions

The Supreme Court and High Courts should exercise their constitutional powers to:

• Examine the constitutionality of gender-specific provisions under the BNS.
• Issue guidelines or directions (as in Vishaka v. State of Rajasthan) until the legislature enacts suitable amendments.

(ii) Interim Protection under Existing Laws

In the absence of gender-neutral sexual offence laws:

• Victims may seek remedy under Section 354 (use of criminal force), Section 509 (insulting modesty), and Section 377 (for acts before repeal).
• Courts should interpret these provisions expansively to grant relief wherever possible.

10.4 Need for Political Will

While courts and activists can spark the debate, real change must come from Parliament.

Political parties should:

• Acknowledge the issue of male and LGBTQ+ sexual violence.
• Rise above vote-bank politics and moral conservatism.
• Champion inclusive criminal justice reform as part of their legislative agenda.

10.5 Ethical and Societal Considerations

The exclusion of certain victims based on their gender or sexuality is rooted in patriarchal norms, toxic masculinity, and societal shame.

It discourages male survivors from coming forward.

• Reinforces the toxic notion that men are always aggressors, never victims.
• Silences victims and allows perpetrators to operate with impunity.
• A shift in societal perception, supported by law, is imperative.

The Bharatiya Nyaya Sanhita, 2023, while introduced as a transformative legal code, fails to uphold the constitutional promise of equal justice by excluding male and LGBTQ+ victims from the ambit of sexual offence laws. This omission perpetuates injustice, emboldens offenders, and silences survivors.

The time has come to adopt a gender-neutral, consent-based, and inclusive approach to sexual offences. Law must evolve to reflect the changing realities of society and the diverse nature of victimhood. Legislative reform, judicial activism, institutional support, and public awareness must converge to ensure no victim is left behind.

As the Supreme Court of India eloquently stated in Navtej Singh Johar:

“The Constitution is a living document… and it must always be interpreted in a manner which enhances human rights and dignity.”

Anything less would be a betrayal of justice.

.    .    .

References:

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