New Law Same Blind Spot: Men Cannot Be Rape Victims

The recent legislative shift that took place, replacing the Indian Penal Code (IPC) with the Bharatiya Nyaya Sanhita (BNS), is a change aiming towards decolonial modernisation,n aiming to build a more citizen-centric legal structure. The BNS focuses more on modernising criminal justice by rectifying outdated laws with contemporary changes that resonate better with the reality of the present. The main aim is the removal of colonial laws, reforming criminal laws and adding laws for new crimes that are to emerge.

However, this new code is being harshly criticised for creating a staggering legal vacuum by removing protections for men and transgender survivors of sexual assault. The core of the legal crisis is the repeal of Section 377 of the IPC without the introduction of a gender-neutral replacement in the BNS. Under the old IPC framework, Section 375/376 covered rape against women, while Section 377 covered the primary legal procedures serving to prosecute non-consensual sexual acts against men and transgender individuals.

The change to the BNS framework replaces Section 375 with Section 63; however, it is highly women-centric. Whether men are treated equally to women when they become victims is a question of fact. The perpetrator is described as a man while the victim is described as a woman. This removes the possibility of any other gender ever being a victim, thus removing the right of males and transgender persons to be seen as victims in case of sexual assault cases and get justice against the violation of their rights by the court. This makes such acts a "non-offence" under the new regime.

Therefore, police officers cannot register an FIR for "rape" under Section 63 if the victim is male, as it would violate the statutory definition. Consequently, horrific sexual violations are being "downgraded" to generic bodily harm provisions, such as Section 115 (Voluntarily causing hurt) or Section 121 (Grievous hurt). This legally equates a life-altering sexual trauma with a common street brawl, denying the survivor the specialised investigation their case requires. Forensic support provided to the victims is therefore not provided in these cases due to undermining of this act to a mere physical assault. The standardised medico-legal kits, mandatory DNA profiling, and specialised psychological support frameworks are bypassed and cause loss of critical evidence, therefore further traumatising the survivor.

The new code was implemented in the year 2024, with its first introduction to the Lok Sabha in August 2023. Before this transition was recorded, several documented reports and statistical reports of multiple cases highlight how IPC was the sole legal mechanism for victims of a different gender than ‘woman’ to get justice for the crimes committed against them and get their case registered as rape or sexual assault, but not just physical assault against them. Section 377 of the IPC was also affected by the Navtej Singh Johar verdict to preserve protections for victims of sexual violence, regardless of their gender.

The impact of this legislative change can be seen through multiple real-life incidents that have happened after the transition.

Gorakhpur (June 2024): A 23-year-old man chose suicide after being sexually assaulted by four men. Due to this case taking place after the BNS code replaced the IPC, the police were confused as to how the case should be registered.
Delhi (2024): A man was sexually assaulted in public transport through a rod, but the case was dismissed without any significant legal or public attention, only because of his gender.

These incidents clearly showcase the drawback of this transition. What is seen by every citizen in this country has been addressed by a former keeper of the country as well. The Former Chief Justice of India UU Lalit noted that the BNS has "thrown the baby out with the bathwater" by omitting Section 377, leaving non-female victims completely remediless and without a "window to ventilate their grievance.” This noticeable change has everyone off-guard. This major impact of completely omitting genders other than female from being a victim has not only made the governance of the country difficult but has also plummeted public opinion.

A crime is a crime. It doesn’t matter whether it is against a man or a woman. Gender cannot be considered while evaluating a crime, for justice is for all to reap. It is not a comparison of women and men, but rather protecting the honour and virtue of a victim. This legislative exclusion has created a textbook case of constitutional non-compliance. BNS might be targeting changes to format the laws of crime and punishment for the betterment of society; however, this one change has made it unfeasible.

This new code directly undermines three Fundamental Rights guaranteed under Part III of the Constitution of India:

Article 14 – Equality Before Law: While robust legal mechanisms are provided for female survivors of sexual assault, denying equivalent remedy to other genders is a clear violation of Article 14. A gender centric law creates an arbitrary, unconstitutional classification by comparing sexual assault of genders other than women to physical trauma only.
Article 15 – Prohibition of Discrimination: Article 15 explicitly bans any discrimination that is based on gender. Restricting the cases of sexual assault to have a female victim directly violates the constitutional barrier. More so after the Supreme Court’s NALSA (2014) judgment that recognises transgender persons as a third gender, entitling them to equal protection.
Article 21 – Right to Life and Personal Dignity: Right to Life encompasses “bodily integrity” and the right to be free from sexual violence as repeatedly ruled by the Supreme Court. The exclusion of a penal pathway to punish those violating a man’s or transgender person’s bodily integrity is a failure of the basic constitutional duty of the code under Article 21.

However, it is not without any warning that this change was incorporated. The 246th Parliamentary Report cited that the Standing Committee of Home Affairs warned the government against this issue. They explicitly suggested that the removal of Section 377 would remove all the protections against non-female victims and recommended that it be reintroduced instead. The Justice Verma Committee also mentioned that laws based on protection against rape were recommended ages ago but rejected by the legislature.

Another aspect in which this can be seen is that this exclusion is hindering India from being up to par with other countries that judge sexual assaults based on lack of consent rather than gender biases. One example is the Sexual Offences Act 2003 of the UK, which is a hybrid model that ensures full coverage through overlapping definitions. One of the key features being that it distinctly mentions the lifetime imprisonment of female perpetrators as well.

At the end of the day, the question arises:s what can be done now? The current legal code is clearly not suitable to be used to give judgment for sexual assault cases. This is a highly critical issue that needs to be addressed before any more victims are found with their dignity stripped away due to the negligence of the government in drafting the laws. This issue cannot be undermined, and changes need to be incorporated in the newly developed code. The legislature shall either take inspiration from laws of other countries or change the gender centric approach to a more generic evaluation of crimes.

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