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On 1 July 2024, the Bharatiya Nyaya Sanhita replaced the Indian Penal Code as India's principal criminal law. The government described the new code as a modern, Indian-made replacement for the colonial-era IPC. While many provisions were reorganised and updated, one of the most debated changes involved the disappearance of the old Section 377.

Position of rape law under BNS 

The rape provision in the BNS (Section 63) continues the same basic framework as the IPC: Victim: woman.

Accused: man

Legally, rape is defined only when a man commits specified sexual acts against a woman without her consent or under circumstances where consent is legally invalid. Therefore, adult male victims are not recognised as rape victims under Section 63, transgender persons are also not included within this definition, and women accused of sexually assaulting men are outside the control of law because of the definition of rape. This limitation has existed since the IPC and was retained in the BNS.

What Section 377 used to do

Before July 2024, Section 377 criminalised "carnal intercourse against the order of nature." Originally, it was a colonial provision used to prosecute consensual same-sex relationships. After Navtej Singh Johar v. Union of India, consensual sexual acts between adults were decriminalised. However, Section 377 continued to apply in situations involving non-consensual anal intercourse, forced oral sex, assaults on men, assaults on transgender persons and sexual assaults involving animals. For many years, this section became the principal criminal provision used by police when adult men reported sexual assault.

What changed after BNS 

When Parliament enacted the BNS, no equivalent of Section 377 was included. As a result, there is no specific offence called rape for adult male victims, so there is no direct replacement criminalising every form of non-consensual penetrative sexual assault against men and transgender persons. Critics argue this leaves a legislative gap because prosecutions now depend on other offences that may not reflect the seriousness of rape.

Parliamentary warning 

During examination of the proposed criminal laws, the Department-related Parliamentary Standing Committee on Home Affairs considered this issue. Among its observations was that sexual offences should protect all persons regardless of gender, rather than only women. The recommendation was that Parliament retain or introduce a provision covering non-consensual sexual acts against any individual. The government ultimately did not adopt this recommendation.

Language changes criticised as tokenism.

The BNS introduced gender-neutral wording in several provisions by replacing terms like:
"man"
"person"
or using words such as "whoever."

However, critics note that in offences primarily dealing with sexual violence, the victim is still generally described as "she." They argue the drafting appears modernised while leaving the core protection unchanged.

Constitutional arguments

Legal scholars and activists frequently invoke:

Article 14 — equality before law.
Article 15 — prohibition of discrimination on specified grounds.
Article 21 — protection of life and personal liberty.

They argue that all individuals deserve equal protection from sexual violence regardless of gender. Others counter that the legislature may create gender-specific offences to address the disproportionate prevalence of violence against women, making the constitutional question legally contested rather than settled.

Practical impact 

Critics argue that adult male survivors now face several practical challenges, like no rape FIR under Section 63, absence of a dedicated offence matching the gravity of rape, reliance on other criminal provisions that may carry different punishments or evidentiary requirements and low public awareness that men can also experience sexual violence. This has led lawyers and activists to call for a gender-neutral sexual assault law rather than relying on indirect offences.

Why the issue is so controversial 

Those supporting the current framework argue women remain overwhelmingly the victims of rape in India and gender-specific laws recognise this social reality, and that expanding rape law requires careful drafting to avoid unintended consequences.

Those seeking reform argue that rape is fundamentally a violation of bodily autonomy, regardless of the victim's gender; male and transgender survivors should have equal legal recognition and a modern criminal code should explicitly criminalise non-consensual penetrative sexual assault against any person.

Bottom line

The replacement of the IPC by the BNS did not create a gender-neutral rape law. The repeal of Section 377 also removed the principal provision that had been used to prosecute many cases of non-consensual penetrative sexual assault against adult men. As a result, while such conduct may still be prosecutable under other BNS offences depending on the facts, India currently lacks a specific rape offence covering adult male and transgender victims, which remains a significant subject of legal and constitutional debate.

I think that neither the critics or the people setting the law are wrong because rape is a very serious and sensitive topic and it laws should be made while considering a lot of important factors but at the same point we should also try to understand the problem of male and transgender victims whose voices are ignored and because we have equality in India it is very important to set the laws that should be equal and for the welfare of everyone in the society and if these victims are demanding something about this sensitive topic I think their voices would be heard and laws should be made so that they do not become the victims and we should try to protect them in the same manner we protect women because according to the constitution and humanity we should try to treat everyone equally.

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