The Indian government officially rejected recommendations to make rape laws gender neutral. While the parliamentary standing committee on home affairs advised extending protections to male and transgender victims of sexual assault, the government drafted the Bharatiya Nyaya Sanhita ( BNS) to classify rape strictly as a crime committed by men against women.
The alleged suicide of a 23-year-old man, hours after he was gang-raped by four men in Uttar Pradesh, Gorakhpur district, has shed light upon the soon to be implemented BNS that does not include section 377, or any other section that deals with rape of men and transgender persons. On June 14, the Uttar Pradesh police filed a First Information Report(FIR) against four persons for allegedly raping the 23-year-old at a hotel in the Chiluatal area of Gorakhpur. While the UP police booked the four accused under section 337 of the Indian Penal Code IPC that deals with rape of a man, a transgender person, or an animal, alongside sections dealing with extortion, theft, criminal intimidation, causing grievous hurt and criminal conspiracy. The case opened a debate on the future of such cases in the absence of section 337 or its equivalent in the new code.
The core issue – section 63
Under BNS section 63, rape is strictly defined as a crime committed by a man against a woman. Despite recommendations from the parliamentary standing committee and the Justice Verma committee to make the law gender neutral, the Indian government rejected the proposal; consequently, adult men and transgender individuals have no legal recourse for rape under current penal codes.
Strict gender binary- restricts the perpetrator to a man and the victim to a woman, completely excluding men and trans individuals from seeking justice under rape provisions.
Limited alternative – without section 63, applying to them, victims of sexual assault can only pursue charges under lesser provisions such as sections 114 and 115.
Current legal framework – under section 63 of the implemented BNS, rape is strictly an offence against women. Adult men and transgender persons who are victims of sexual violence lack a corresponding criminal remedy. Protection is only explicitly available to male victims if they are minors under the POSCO Act.
When the IPC was completely replaced by the BNS, the total repeal of IPC section 337 left a critical legal void. While the landmark 2018 Supreme Court ruling already decriminalised consensual same – sex relations, keeping section 337 on the books was essential for prosecuting specific crimes. The specific category and protection that were lost were the protection for men and transgender people. Adults against non–consensual assault – traditional Indian rape laws are strictly gender neutral.
The replacement of the IPC by the BNS on July 1, 2024, eliminated section 337. Consequently, adult males and transgender individuals lack direct recourse for rape. Under section 63 of the BNS, rape is explicitly gender–specific, defining the victim as a woman and the perpetrator as a man. Section 337 of the IPC was removed because the Supreme Court of India ruled it unconstitutional.
Key implications and gap in the laws: lack of FIR registration- because the BNS restricts rape and sexual assault strictly to offences against women, police are left without a statutory provision to register an FIR for non- consensual penetrative assaults on adult men and transgender persons.
The repeal of section 337 – under the old IPC, section 337 penalised unnatural offences.
The removal of section 337 and the lack of parallel provision in the BNS also leaves non-consensual and unnatural acts and bestiality without explicit statutory criminalisation. BNS rape laws do not recognise men and transgender persons as victims; police are often forced to file complaints under lesser charges like (voluntarily causing hurt) or ( criminal intimidation), which do not reflect the sexual nature of the assault and carry significantly lighter penalties.
When Parliament passed BNS to replace IPC, the government omitted section 337. This creates a notable legislative gap, as the new laws do not criminalize non censual sexual acts against men, transgender persons or animals, leaving these victims without legal recourse under BNS.
The legislative oversight, including the panel's warning, noted the legislation lacked provisions for non-consensual sexual offences against males, females, etc.
The committee argued that, to align with the government's stated goals of introducing gender neutral offences. It was mandatory to reintroduce and retain section 337 to cover non-consensual carnal intercourse. Despite these recommendations from the standing committee, the final version of the BNS dropped section 337. Currently, the law severely limits rape and sexual assault definitions under the BNS, such as section 63, strictly to male-on-female offences, excluding adult male and trans person victims.
The tokenism problem when the BNS replaced the IPC refers to the criticism that the government's goals of decolonising criminal law resulted in cosmetic changes rather than deep substantive reforms.
The BNS limits the definition of rape to a man assaulting a woman, while the repetition of section 337 removes protection for male and transgender victims of adult sexual assault – creating a constitutional crisis by arguing with fundamental rights.
Article 15- right to discrimination – by restricting statutory rape, protection only to women, effectively discriminates on the ground of sex.
Article 14- right to equality – treats victims of the same nature of violence differently based on gender, denying males.
Article 21_ right to liberty – denying adult men and transgender individuals the right to seek justice for non-consensual sexual acts, core of liberty.
Under the BNS, section 63 limits perpetrators to men and victims to women, omits section 337, and strictly codifies rape as a law with a male perpetrator and a female victim.
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